All Sales by Oliner Fibre and all Offers to Sell are subject to our standard terms and conditions of sale:
1. SHIPMENTS – SELLER shall not be liable for any losses claimed resulting from delay in shipment of the goods after the date of shipment specified in this Acknowledgment. CUSTOMER agrees to accept any quantities shipped under this Acknowledgment which do not vary by more than ten percent from the agreement amount and to pay for such quantities at the agreement price.
2. TITLE AND RISK OF LOSS – Title to the goods herein described, together with the risk of loss and damage to said goods, shall pass to CUSTOMER upon delivery of said goods to a carrier at SELLER’S plant, notwithstanding any agreement to the contrary, including but not limited to any agreement to pay freight, express, or other transportation or insurance charges.
3. PAYMENT AND PRICES – Terms of payment by CUSTOMER are of the essence of this agreement. In the event of failure by CUSTOMER to
make any payment when due, SELLER may decline to make further shipments until such default is cured. In the alternative, SELLER may elect to continue to make shipments despite the continuance of such default but such election by SELLER shall in no way constitute a waiver of such default nor affect SELLER’S legal remedies therefore. In the event that any invoice is not paid when due, CUSTOMER shall pay SELLER interest on the balance due from the date of the invoice until fully paid at the rate of one and one-half percent (1 -1/2 %) per month or the maximum rate allowed by applicable law, whichever rate is less. CUSTOMER also agrees to pay the attorney’s fees and expenses incurred by SELLER in enforcing the terms of this Agreement.
4. TAXES. DUTIES AND CLEARANCE EXPENSES – CUSTOMER assumes full responsibility for reporting and paying all taxes, however designated, or other governmental charges based upon or in connection with the sale of goods herein, including state and local privilege, sales, use, or excise taxes based upon gross revenue or any taxes or amounts in lieu thereof paid or payable by SELLER in respect of the foregoing exclusive, however, of taxes paid on net income. SELLER’S invoice may include any such taxes and any expense incurred by SELLER in shipping the goods to the destination specified by CUSTOMER.
5. FREIGHT AND INSURANCE – In the event SELLER is to pay freight, it shall have the right to designate the means of transportation and routing, but in the event CUSTOMER desires to a more expensive means of transportation or routing, CUSTOMER shall pay any extra cost involved. CUSTOMER shall insure the goods described herein (if sold for shipments outside the United States) on behalf of SELLER until arrival of such goods at the port-of-destination, and SELLER shall be named as a loss payee or the proceeds of such insurance shall be assigned to SELLER.
6. LIMITED WARRANTY – SELLER warrants that the goods herein described shall be free from defects in material and workmanship under
recommended conditions of storage and use for ninety (90) days from date of shipment. Except as specifically stated above, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GOODS.
7. LIMITATION OF REMEDIES – SELLER’S entire obligation and CUSTOMER’S exclusive remedy shall be, at SELLER’S sole choice, to either repair or replace any defective goods that do not meet SELLER’S Limited Warranty, provided that CUSTOMER redelivers such defective goods to SELLER’S plant. SELLER shall not be liable for repair or alterations made without SELLER’S prior written approval. Any replacement goods will be warranted for the remainder of the original Limited Warranty period or thirty (30) days, whichever is longer.
8. LIMITATION OF LIABILITY – IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THE GOODS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT BASED UPON THEORIES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY, CONTRIBUTION, OR OTHERWISE. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PAYMENTS ACTUALLY MADE BY CUSTOMER FOR THE GOODS.
9. CLAIMS – Within twenty (20) days after tender of delivery to or receipt by CUSTOMER of any shipment of goods and before any part of such goods has been changed from its original condition, CUSTOMER shall inform SELLER in writing if said goods are found defective or short in any respect. CUSTOMER shall be deemed to have accepted the goods and SELLER shall be deemed to have satisfactorily performed its obligations unless CUSTOMER provides such timely notice.
10. TERMINATION – SELLER may suspend or terminate this agreement if CUSTOMER becomes unable to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against CUSTOMER, or if a receiver for CUSTOMER is appointed or applied for or if any assignment for the benefit of creditors is made by CUSTOMER or if CUSTOMER’S financial condition leads SELLER to believe that CUSTOMER will be unable to pay for the goods when due and CUSTOMER is unable to provide SELLER with any necessary assurances that the goods will be paid for when due.
11. FORCE MAJEURE – SELLER shall not be liable to CUSTOMER for any loss or damage of any kind whatsoever incurred or suffered as a result of delays or interruptions caused by acts of God, strikes, lockouts, riots, acts of war, subsequently enacted government regulations, fire, flood, communication line failures, power and equipment failures, transportation delays, earthquakes, natural disasters, and other events beyond the reasonable control of SELLER. In such event, SELLER may make deliveries ratably to all of its customers.
12. GOVERNING LAW AND ASSIGNMENTS – This agreement and the obligations hereby imposed on SELLER and CUSTOMER shall be governed by and construed in accordance with the laws of the State of New Jersey. This agreement shall not be assigned by either party hereto without the prior written consent of the other party, which consent shall not be unreasonably withheld.
13. LIMITATIONS OF ACTION – No action arising out of or related to the goods or transaction herein described may be brought more than one (1) year after such claim or cause of action first arose, apart from collection actions. CUSTOMER consents to the jurisdiction of the courts in the State of New Jersey for resolution of any dispute or claims that may arise under this agreement or the goods ordered hereunder.
14. ENTIRE AGREEMENT: MODIFICATIONS – This Acknowledgment constitutes the entire agreement between the parties for the goods. No change in, addition to, or waiver of terms, conditions, and specifications contained herein shall be a binding obligation on SELLER unless approved in writing by its authorized representative.