GENERAL CONDITIONS OF SALE
1. ENTIRE AGREEMENT: Unless Highstar lnc. (“HS”) and Purchaser have agreed otherwise in writing, these terms of sale, together with all provisions appearing on the face hereof, shall be deemed to comprise the entire Agreement between HS and Purchaser concerning the transaction for the purchase and sale of the products described on the face of this document (the “Products”), and supersede any and all prior communications and agreements including without limitation any terms and conditions as may be contained in Purchaser’s purchase order form. This Agreement may only be modified by the mutual agreement of the parties in writing.
2. INSPECTION OF GOODS: All materials are to be thoroughly inspected upon delivery. If crates arrive wet or damaged, this must be noted on the Bill of Lading and co-signed by the driver of the vehicle.
3. ALTERATION OF PRODUCT: Should the product be changed, semi-manufactured, ripped, chopped, etc. or altered in anyway from its original state it cannot be exchanged, refunded or credited.
4. WARRANTY AND LIMITATIONS: Products supplied by HS are warranted to be of merchantable quality and to conform to the specifications and tolerances provided in the applicable industry standards, or HS’s published standards, or otherwise in this Agreement. Should any Product supplied by HS be found not to meet the foregoing warranty, HS will furnish a replacement Product conforming to this warranty, or, at HS’s election, make a fair allowance therefor. Written notice of any claim under this warranty must be given by Purchaser to HS within 30 days after delivery and Purchaser must afford HS a reasonable opportunity to inspect the Products in unaltered condition and evaluate the claim. THERE ARE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE FOREGOING WARRANTY. THE LIABILITY OF HS UNDER THE FOREGOING WARRANTY AND OTHERWISE UNDER THIS AGREEMENT SHALL BE LIMITED IN THE MANNER HEREIN PROVIDED, AND SHALL IN NO EVENT EXCEED THE TOTAL PRICE OF THE SHIPMENT INVOLVED. IN NO EVENT SHALL HS BE LIABLE FOR CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES. For best milling results use diamond tooling and periodically double-check moisture content of the sheets as warehousing conditions may have changed the original state of the materials.
5. WARRANTY FOR PRODUCTS NOT SUPPLIED BY HS: The foregoing warranty does not apply to Products which are not supplied by HS. For all such Products, HS makes no representations or warranties whatsoever, statutory or otherwise, express or implied, including any warranty of merchantability or fitness for any particular purpose. All such Products are sold “AS IS, WITH ALL FAULTS”. To the extent that the manufacturer of the Product provides a warranty and such warranty is transferable without consent, HS will transfer such manufacturer’s warranty to Purchaser without HS incurring any liability thereunder.
6. QUANTITY TOLERANCES: Unless exact-loading was specified by Purchaser at the time of ordering, or is the universal custom applicable to the described Product, Purchaser acknowledges HS’s right to increase or decrease the quantity called for under the order by not more than 10%, if necessary to avoid waste, to avoid breaking customary shipping units, to meet minimum tariff requirements or size of equipment furnished, or to comply with governmental regulations.
7. TIME AND PLACE OF SHIPMENT: Purchaser acknowledges that the date of shipment is an approximation only and is not guaranteed.
8. RETENTION OF TITLE: Title to the Goods shall remain vested in HS and shall not pass to the Purchaser until the purchase price for the Goods has been paid in full and received by HS. Until title to the Products passes:
HS shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the Products;
HS and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which the Products or any part are stored, or upon which HS reasonably believes them to be kept; the Purchaser shall store or mark the Products in a manner reasonably satisfactory to HS indicating that title to the Products remains vested in HS; and the Purchaser shall insure the Products to their full replacement value, and arrange for HS to be noted on the policy of insurance as the loss payee.
9. TITLE AND RISK: Notwithstanding any other provision contained herein, title and risk of loss or damage shall pass to Purchaser upon delivery of the Products to any carrier, except a motor vehicle operated by HS, at HS’s plant, yard or other shipping point. In the case of a shipment by motor vehicle operated by HS, title and risk of loss or damage shall pass to Purchaser upon delivery and unloading of the Products at the Purchaser’s warehouse, yard or jobsite.
10. PAYMENT and SECURITY INTEREST: Purchaser agrees to pay HS all invoice amounts when due, all legal fees and expenses incurred by HS in collecting such amounts, and interest on all outstanding amounts from and after the payment due date at a rate of 1¾ % per month (21% per annum). Purchaser grants to HS a security interest over all personal property described in this invoice securing payment of all indebtedness described in this invoice as well as performance of all of the obligations of Purchaser to HS. Acceptance of the personal property described in this invoice by Purchaser shall be deemed to be conclusive evidence of Purchaser’s acceptance of these terms of sale and granting of this security interest.
11. LAW: The provisions of this Agreement shall be construed and interpreted in accordance with the laws of the United States. Jurisdiction for legal matters is Delaware County, Pennsylvania.