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   TERMS AND CONDITIONS FOR SALE OF GOODS BY APPALACHIAN INSULATION SUPPLY, INC. AND AFFILIATES

 

Terms and Conditions: The contents of this document (the “Terms and Conditions”) shall be the sole terms and conditions governing the sale of goods by Appalachian Insulation Supply, Inc. and/or any of its subsidiaries and affiliates doing business as AIS or Appalachian Insulation (“Seller”) to the purchaser of such goods (“Buyer”). Seller may be any of Appalachian Insulation Supply, Inc.; Appalachian Insulation Supply of Ohio, LLC; Appalachian Insulation Supply of Virginia, LLC; Appalachian Insulation Supply of South Carolina, LLC; Appalachian Insulation Supply of Tennessee, LLC; Appalachian Insulation of North Carolina, LLC; and Appalachian Insulation Supply of Florida, LLC. The identity of Buyer, the description and quantity of the goods being purchased (the “Goods”), the destination for delivery of the Goods, and other material information concerning Buyer’s order shall be set forth in Buyer’s purchase order, as elaborated by the confirmed Order Acknowledgment, (collectively, the “Purchase Order”) and provided to Seller. Seller may accept or reject any order. These Terms and Conditions are hereby incorporated into and made a part of each such Purchase Order. Upon the earlier of Seller’s issuance of its Delivery Confirmation or Buyer’s receipt of Goods furnished by Seller in response to such Purchase Order: the Purchase Order, Seller’s Delivery Confirmation, and these Terms and Conditions shall be the complete and final agreement (the “Agreement”) between Seller and Buyer with respect to the purchase and sale of Goods identified in the Purchase Order; provided, however, that no pre-printed or form language appearing in Buyer’s Purchase Order shall become a part of the Agreement. SELLER’S ISSUANCE OF ITS DELIVERY CONFIRMATION IS EXPRESSLY MADE CONDITIONAL UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS, AND SELLER OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS, WHETHER CONTAINED IN BUYER’S PURCHASE ORDER OR OTHERWISE. SELLER WILL NOT BE DEEMED TO HAVE WAIVED THESE TERMS AND CONDITIONS OF SALE IF SELLER FAILS TO OBJECT TO PROVISIONS CONTAINED IN BUYER’S PURCHASE ORDER, OTHER FORMS, OR OTHERWISE.

Delivery; Title; Risk of Loss: Unless otherwise specifically agreed in writing by Seller, all Goods are sold F.O.B. Seller’s warehouse, the cost of transportation for and risk of loss to the Goods to be borne and paid by Buyer. Title to the Goods will pass to Buyer when the Goods are picked up by Buyer at Seller’s warehouse or when the Goods are delivered to the carrier at Seller’s warehouse, whether the carrier is selected by Seller or Buyer.

Delivery Dates: All delivery and shipping dates are estimates only. Seller expressly reserves the right to deliver the Goods at any time prior to the target delivery or shipping date.

Delays: Seller will use commercially reasonable efforts to fill the Purchase Order in accordance with the targeted delivery or shipping date, but Seller will not be responsible for any delays in filling the Purchase Order nor liable for any direct or indirect losses or damages resulting from such delays, and the Purchase Order will not be subject to cancellation for any such delays.

Force Majeure and Commercial Impracticability: Seller will not be liable for delays in filling the Purchase Order or failure in the performance of any of its obligations under the Agreement caused by accidents, labor disputes or disruptions, strikes, shortages of labor, materials, fuel or power, fires, floods or other acts of God, acts of terrorism, civil insurrection, or war, acts or omissions of Buyer, delays in transportation or lack of transportation facilities, priorities required, requested or granted for the benefit of the government, restrictions imposed by law or any rules or regulations thereunder, or any cause, whether similar to or dissimilar from those set forth above, beyond Seller’s reasonable control, or caused by unforeseen supervening circumstances not within the contemplation of Seller and Buyer, or because of extreme and unreasonable difficulty, expense, injury or loss involved.

Payment and Prices: Buyer will pay for all goods or services ordered on its behalf and received by Buyer by making payment pursuant to Seller’s invoices at the prices and charges identified within those invoices or other price quote uniquely prepared for and delivered to Buyer by Seller, and subject to any applicable agreement between the parties, such as any material re-pricing arrangement, and other nature of charges or surcharges. All prices and payments are in U.S. dollars. Buyer’s obligation to make full and timely payment for each shipment will be without right of set-off or recoupment. The prices stated do not include federal, state, or local excise, sales or use taxes, if any; all such taxes in effect or hereafter levied and that are applicable to the sale of the Goods are in addition to such prices and will be paid by Buyer. Unless otherwise agreed to in writing by Seller, payment terms are net 30 days from the date of invoice. Seller retains all rights and remedies pertaining to the collection of unpaid amounts owed by Buyer under the Agreement, and Buyer will reimburse Seller for all costs associated with such collection activities, including but not limited to attorney fees actually incurred. Seller reserves the right to charge and collect interest on late payments; and Seller’s then-standard service charge will be applied to each returned check. Failure to pay an invoice by the due date may result in forfeiture of any rebate extended to Customer by Seller, at Seller’s sole discretion. If Buyer wrongfully rejects or revokes acceptance of any Goods or fails to make a payment due on or before delivery of Goods or repudiates any confirmed order for Goods, or if Seller discovers that, or has reasonable grounds to believe that, Buyer is insolvent, or should Seller deem itself insecure, then, in addition to all other rights and remedies Seller may have, Seller may demand different terms of payment, demand assurance of due payment, suspend delivery of Goods, stop delivery by any bailee, otherwise suspend its performance, take any preparatory action concerning any Goods for which Seller has not received the quoted price, and/or cancel without prior notice. If, within the period stated in any said demand, Buyer fails or refuses to agree to such different terms of payment or fails or refuses to give adequate assurance of due payment, Seller may, at its option, and in addition to all other rights and remedies, treat such failure or refusal as a repudiation of the portion of the Purchase Order that has not been fully performed, or may make shipment under reservation of possession or of a security interest and may demand payment against tender of documents of title.

Purchase Orders: All Purchase Orders for Goods are subject to minimum order quantities and a shipment policy, as declared by Seller from time to time. Order policy and pricing are subject to change by Seller without notice.

Quantity: Any Purchase Order filled by Seller that is less than the quantity ordered by Buyer but not less than ninety percent (90%) of the quantity ordered will be deemed to be fully and timely filled. In such event, Seller shall notify Buyer that the Purchase Order has been filled, and Buyer shall be entitled only to the quantity of Goods provided by Seller, and shall be required to pay only for the amount actually delivered by Seller (but not for more than the amount ordered).

Inspection, Acceptance, or Rejection: Buyer will make adequate inspection of the Goods promptly after receipt, and in any event within seven (7) days of receipt, and will give Seller prompt written notice of any non-conformity, discrepancy, damage, or defect. Buyer’s failure in either respect will constitute a waiver of such non-conformity or defect. Buyer must keep lot traceability records for the Goods to ensure that lots delivered by Seller can be traced through Buyer’s work processes. Buyer will retain goods damaged in transit and defective goods for inspection by Seller for three (3) weeks after notifying Seller of the damage or defect, or longer if so requested by Seller, and will return such goods to Seller at Seller’s request and expense.

Terminations or Changes: Buyer may not terminate any Purchase Order without the prior written consent of Seller. If Seller consents to such termination, Seller may compute and assess reasonable termination charges in connection with such termination. Any change requested by Buyer to any Purchase Order will be subject to the consent of Seller and to an equitable price adjustment and/or delivery adjustment, as determined by Seller.

Assignment: Buyer may not assign the Purchase Order or the Agreement and any right or interest thereunder without Seller’s prior, express written consent.

Warranty: Seller warrants that the Goods sold to Buyer, at the time of shipment, will be as described on the Seller’s Delivery Confirmation (or, if there is no such written order confirmation, on the invoice) and will be free from defects in material and workmanship. This warranty is limited to twelve (12) months from the date of shipment of the Goods to Buyer. Seller’s sole obligation and liability in the event of breach of warranty and Buyer’s sole remedy, as determined by Seller, will be Seller’s repayment of the amount paid for any non-conforming Goods or replacement of non-conforming Goods free of charge at Buyer’s delivery point. Such repair, replacement or repayment will be made only upon return of the non-conforming Goods, which may be returned at Seller’s cost only after inspection by Seller (which may take the form of Buyer returning a sample to Seller, at Seller’s request) and Buyer’s receipt from Seller of definite shipping instructions and a Return Goods Authorization number issued by Seller. SELLER MAKES NO WARRANTY REGARDING MERCHANTABILITY OR FITNESS FOR ANY PARTICULARPURPOSE. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, EXCEPT SUCH AS IS EXPRESSLY SET FORTHHEREIN. Seller hereby assigns to Buyer any assignable or transferable manufacturer’s warranties provided by the manufacturer of goods sold but not manufactured by Seller, if any. Seller shall have no liability for defects, whether hidden or apparent, in products manufactured by others. Nothing in this paragraph excludes or limits liability for death or personal injury to the extent proximately caused by Seller’s negligence.

Excluded Damages: In no event will Seller be liable for any incidental, consequential, indirect, special, contingent, exemplary, or punitive damages arising out of or relating to: (i) any breach of contract or warranty, tort (including but not limited to negligence or strict liability), or other theories of law with respect to the Goods sold or services rendered, or undertakings, acts or omissions relating thereto; (ii) the tender of defective or non-conforming Goods; (iii) breach of any other provision of the Agreement; or (iv) any claim of any kind arising out of or relating to any Purchase Order or Seller’s performance in connection therewith.

In any event, Seller’s liability will not exceed the purchase price of the Goods on which such liability is based. Buyer assumes all liability for any loss, damage or injury to persons or property arising out of, connected with, or resulting from the use of Seller’s Goods, either alone or in combination with other products.

Confidentiality and Intellectual Property: Unless otherwise expressly agreed to in a writing duly executed by an officer of Seller, Seller will not be bound by any obligations of confidentiality or non-disclosure. Seller does not grant to Buyer, and nothing contained herein will obligate or be construed to obligate Seller to grant to Buyer, any license regarding intellectual property owned by Seller.

Miscellaneous: The Agreement may be performed, and all rights hereunder may be enforced against Buyer, by Seller or any subsidiary, parent, or affiliate of Seller. All of Seller’s rights and remedies are cumulative and may be exercised simultaneously and in any order. Venue for any action, suit, or proceeding (at law or in equity) arising out of or relating to the Agreement shall lie with any court of competent subject matter jurisdiction within the U. S. District Court for the Eastern District of Pennsylvania or the Court of Common Pleas of Lancaster County, Pennsylvania (including its magisterial district courts); and Seller and Buyer each submit to the personal jurisdiction of such court and waive any right it might otherwise have to claim lack of personal jurisdiction or inconvenient forum. Neither the Agreement nor Seller’s exercise of rights and discretion thereunder affects, modifies, or releases any guaranty or surety that Seller enjoys and concerning Buyer’s performance of duties and payment to Seller. No provision hereof and no breach of any provision will be deemed waived by reason of any previous waiver of such provision or of any breach thereof. Seller may revise, amend, or restate Terms and Conditions from time to time and at any time, and such will apply to sales transactions thereafter arising; nevertheless, as regards any Agreement created when this set or any other particular set of the Terms and Conditions exist, such Terms and Conditions may be modified only by a writing signed by the parties. The invalidity, in whole or in part, of any provision of the Agreement will not affect the remainder of such provision or any other provision. The Agreement is governed by, and will be interpreted in accordance with, the laws of the Commonwealth of Pennsylvania, disregarding any rules or principles relating to the choice or conflicts of law. The Agreement is not governed in whole or in part by, and both Seller and Buyer irrevocably disclaim the applicability of, the United Nations Convention on Contracts for the International Sale of Goods. The contents of this paragraph, and the provisions captioned or concerning Warranty, Excluded Damages, Confidentiality and Intellectual Property, and any other clause or section providing for limitation of or protection against liability of Seller, will survive any termination, cancellation, repudiation, or expiration of the Agreement and/or any Purchase Order.                                                                               Ed.June2016