1. PRICE AND DELIVERY. Seller shall furnish the material named herein in accordance with the prices and delivery dates or schedule of dates stated herein.
2. WARRANTIES. There is no warranty, representation or condition of any kind relating to the materials, except that the materials shall have the qualities specified on the face and reverse side of this document. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT. Without limiting the generality of the foregoing, Seller assumes no responsibility for the results obtained by the use of the material whether singularly or in combination with other products or for the carpeting or other product to which the material is affixed or with which it is combined or for any reaction or effect of the material on any such product.
3. CLAIMS. No claim of any kind, whether as to goods delivered or for non-delivery of goods, shall be greater in amount than the purchase price of the goods in respect of which such damages are claimed; and failure to give written notice of claim within ninety (90) days from the date of delivery, shall constitute a waiver by Buyer of all claims in respect of such goods. No charges or expenses incident to any claims will be allowed unless approved by an authorized representative of Seller. Seller shall have an opportunity to inspect any materials which are claimed to be defective prior to return of the materials by Buyer to Seller. No claim will be allowable after the goods have been treated or processed in any manner. Seller’s invoice weights, volumes, sizes and tares established in good faith shall govern unless proved erroneous. Variations of one percent (1%) or less from invoice quantity of any shipment shall be disregarded.
4. SELLER’S LIABILITY. Seller shall not be liable for prospective profits or special, indirect or consequential damages, nor shall recovery of any kind against Seller be greater than the amount of the purchase price of the specific material sold and causing the alleged damage. Buyer assumes all risk and liability of damage after the materials are delivered by Seller to the carrier.
5. CREDIT. The terms of payment applicable to this order are Seller’s regular terms or those specifically quoted to Buyer. In the event Buyer fails to fulfill the terms of payment, or in case Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security. Credit terms may be decreased, cancelled or limited by Seller, both as to time and amount, at any time without notice. Seller shall not be obligated to make any shipment when Buyer is in default to Seller under this or any other contract. Buyer shall make no deductions (including those for alleged damages) from payments due hereunder. If Buyer shall fail to comply with agreed terms of payment, Seller may wholly or partially terminate this contract by mailing notice to Buyer.
6. DELIVERY. No delivery shall be deemed late if shipment is made with ten (10) days after any specified date of delivery. Material varying not more than ten percent (10%) in weight or quantity shall be deemed compliance with this contract. Any delivery not taken by the customer within six (6) business days after the expected ship/pick-up date will be shipped to the customer on a Propex-designated carrier at the customer’s expense.
7. TAXES. Buyer shall reimburse Seller for all taxes, excises or other charges which Seller may be required to pay to any government (national, state or local) upon the sale, production or transportation of the commodities sold hereunder.
8. BUYER’S FAILURE TO TAKE QUANTITY ORDERED. Any portion of this order not taken by customer in the month originally specified may be postponed or cancelled at Seller’s option without tender or notice to the customer. Such postponement or cancellation shall not affect any remaining portion on the order.
9. FORCE MAJEURE. Seller shall not be liable, and the Buyer shall have no right in respect of any delay in delivery or failure to deliver any material named herein, or of the nonperformance or delay in performance of any term or condition of this agreement, directly or indirectly, resulting from fire, explosion, accident, flood, labor trouble or shortage, war, any act of or authorized by any governmental agency, inability to obtain suitable material, equipment, fuel, power or transportation, or Act of God, or arising from any and all contingencies, happenings or causes beyond the control of Seller.
10. FREIGHT CHARGES. If Seller is to pay freight, Seller shall have the right initially to designate the means of transportation and routing, and if Buyer requires a more expensive means of routing, Buyer shall pay any extra cost involved. Buyer shall pay to Seller any increase in freight subsequent to the date thereof. Any freight amount on a purchase order is considered to be an estimate only, and actual freight will be billed after shipment.
11. ASSIGNMENT. This order is not assignable or transferable by Buyer, in whole or in part, except with written consent of Seller.
12. TECHNICAL ASSISTANCE. In the event that Seller furnishes or provides technical advice or assistance to the Buyer, Buyer accepts such advice or assistance at its sole risk, and Seller shall have no liability of any kind, based upon the accuracy, authenticity or validity of the advice or assistance given or the results or lack of results achieved. All such advice or assistance shall be rendered and accepted at Buyer’s sole risk.
13. STATUTORY COMPLIANCE. Seller will comply with all applicable federal, state, and local laws. Without limiting the generality of the foregoing, the Seller represents that the material named herein be produced in compliance with all applicable requirements of the Fair Standards Act of 1938, as amended.
14. ALLOCATION. In the event of the inability of the Seller, for any reason, to furnish all of the material named herein, Seller may, in its sole discretion, allocate and apportion its available supply of the material among any or all purchasers of said material, including the Buyer, as well as departments and division of the Seller, on such basis as it may deem fair and practical without liability for any failure of performance which may result therefrom.
15. COMPLETE AGREEMENT. This instrument contains all the terms and conditions with respect to the sale and purchase of the material named herein. No waiver, alteration or modification of any of the provisions of this instrument shall be binding on Seller unless evidenced by a waiver, alteration or amendment to this instrument signed by a duly authorized representative of Seller.
16. IDENTIFICATION OF FIBERS. Seller guarantees that the textile fiber products specified herein are not misbranded nor falsely nor deceptively advertised or invoiced by Seller under the provisions of the Textile Fiber Products Identification Act and rules and regulation thereunder.
17. TRADEMARKS AND TRADE NAMES EXCLUDED. No right to the use of any trade name or trademark of the Seller passes to the Buyer under this contract and the Buyer agrees to refrain, either directly or indirectly, from using any of the Seller’s trade names or trademarks unless specifically authorized to the contrary by the Seller in writing.
18. INTERPRETATION & ACCEPTANCE. This Contract shall be interpreted and governed by the laws of the State of Delaware. Unless otherwise provided, it is agreed that sales are made on the terms, conditions and warranties contained here, and that to the extent of any conflict the same take precedence over any terms and conditions which may appear on Buyer’s order form. Seller shall not be bound by Buyer’s terms and conditions unless it is expressly agreed to in writing. In the absence of written acceptance of these terms, acceptance of or any payment for any of the material covered hereby shall constitute an acceptance of these terms and conditions.