1. The terms “Seller” refers to Belton Industries, Inc.; the term “Buyer” refers to the entity indicated as “Sold to” on the reverse side of this “Sales Confirmation”; “Product” refers to the items listed on the reverse side and any other of Seller’s products.
2. Binding Order: No Changes. Buyer’s order is binding only when accepted at the Seller’s offices in Atlanta, Georgia, or Belton, South Carolina, by written Sales Confirmation. After acceptance, no changes to a purchase order will be permitted unless approved in a writing signed by Seller’s authorized representative. Seller rejects any terms and conditions in Buyer’s order which are different from or additional to these terms and conditions and any unapproved changes to the order.
3. Applicable Law: Jurisdiction: Limitation of Actions. The laws of the State of South Carolina, except for its rules or principles of conflict of laws, will govern all matters relating to this sale. Buyer and Seller agree to submit to the jurisdiction of the courts in South Carolina for any matter arising out of this transaction.
4. Limitation of Liability. IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS TRANSACTION OR THE SALE OR USE OF ANY PRODUCTS FURNISHED, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED HEREIN FAILS, NOR WILL SELLER’S TOTAL LIABILITY EXCEED AN AMOUNT EQUAL TO THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS ORDERED HEREUNDER.
5. Delivery. “Delivery” will take place when Products are tendered to the carrier at Seller’s place of shipment, or if shipped on Seller’s vehicle, when tendered at destination. Title and risk of loss pass to Buyer upon Delivery. Products will be delivered on or about the date specified on the reverse side of this Sales Confirmation. Seller may deliver Buyer’s order in two or more installments. Seller will give Buyer written notice of its intent to deliver in installments. Delivery will be deemed complete when the quantity delivered is within five percent (5%) of the quantity specified in the Sales Confirmation for each Product.
6. Price. Subject to the provisions regarding Force Majeure, “Prices” in effect on the date of this Sales Confirmation will be honored, provided Delivery is accepted within sixty (60) days thereafter. Prices do not include freight; insurance; sales, use, excise or similar taxes; or duties. Where appropriate, such taxes will be added the invoice and paid by Buyer, unless Buyer provides Seller with evidence of payment or a certificate of exemption. Unless otherwise agreed, Seller will arrange for and prepay shipping and insurance and invoice cost for same to Buyer. Prices on future orders are subject to changes. Seller will use reasonable efforts to provide advance notice of changes in Prices.
7. Payment: Credit. Unless Buyer has established credit with Seller, payment is due on Delivery. Seller may require payment prior to Delivery. Credit terms, if any, are listed on reverse side. If credit is granted, any amount not paid when due will bear interest at the rate of 1 ½% per month or at the highest rate allowed by law (whichever is less), from the date of Delivery until paid and may result in termination or suspension of future Deliveries.
8. Solvency: Cost of Enforcement. Buyer’s order will be deemed a representation that Buyer is solvent, and willing and able to pay timely for the Products ordered. If, in Seller’s reasonable judgment, it becomes necessary to employ an agent or to bring legal action to collect payment or to enforce any term or provision of this Sales Confirmation, Buyer agrees to pay Seller, in addition to any amount due hereunder, Seller’s agent’s and/or attorney’s fees, costs and expenses in taking and maintaining such action.
9. Acceptance. Acceptance will be accomplished by using applicable test procedures as set forth by Seller. Nonconforming Products must be rejected within ten (10) calendar days after receipt or they will be deemed accepted. Failure to reject timely, or Buyer’s use or alteration of any Product will be deemed an irrevocable acceptance thereof, and will automatically release Seller from any liability therefor. Buyer will furnish samples adequate to test any Product claimed to be defective, and Seller will be afforded the opportunity to take its own samples.
10. Limited Warranty. Upon payment in full, Seller warrants good title to the Products. Seller also warrants that upon Delivery, each Product delivered will be free from material defects in workmanship and materials. Only a writing signed by Seller’s authorized representative can change this warranty. Seller makes no representation or warranty with respect to the effect of a Product on the safety characteristics of items manufactured from that Product.
11. Exclusive Remedy: Warranty Disclaimer. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH, INCLUDING BREACH OF WARRANTY, IS THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT, OR REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE PRODUCT, AT SELLER’S OPTION. THIS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SELLER SPECIFICALLY DISCLAIMS ANY WARRANTIES TO CUSTOMERS OF BUYER.
12. Warranty Claims: Notice. Any claim by Buyer under this warranty must be made in writing, within seven (7) days after discovery thereof, but in no event later than one year after Delivery of the allegedly defective Product. The notice of the breach must specify the defect, the facts constituting the alleged breach of warranty or other basis for the claim and must be sent by certified mail to Seller’s address on the reverse side hereof. Failure to specify any defect discoverable upon reasonable inspection will constitute a waiver of that defect. Seller may require return of defective Product, freight collect, as a condition of refund.
13. Force Majeure and Allocation. Neither party hereto will be responsible for any delay or failure of performance under this Sales Confirmation (other than to make payments due hereunder) if such delay or nonperformance is caused by acts of God, floods, fires, explosions, storms, transportation difficulties, strikes, lockouts, or other labor or industrial disturbances; wars, any law, rule, order, or action of any court, agency or other instrumentality of the federal or any state or local government, exhaustion, reduction or unavailability of material at the source of supply from which deliveries are normally made hereunder or exhaustion or unavailability or delay in delivery of any material necessary in the manufacture of the Products to be sold hereunder (regardless of whether or not such exhaustion, reduction, unavailability or delay is beyond such party’s control, provided only that the same is not willfully done or brought about for the purpose of excusing failure to perform under this Sales Confirmation) or any other cause or causes beyond a party’s control whether similar or dissimilar to those stated above. In the event of the occurrence of any of the contingencies referred to in this provision, Seller will have the right to curtail deliveries or allocate its supply of Products for sale among all its customers in any manner which in its sole discretion is fair and reasonable in the circumstances and Buyer will not hold Seller responsible for any losses or damage which Buyer may incur as a result of any such failure, curtailment or allocation by Seller. Seller will not be required to make up any Product not so delivered. The foregoing notwithstanding, Seller will make reasonable efforts to procure supplies and materials, from alternate sources if necessary, and to meet and fill Buyer’s order.
14. Integration: No Waiver: Severability. This Sales Confirmation contains the entire agreement between the parties with respect to the Products. Any model, sample or prior written or oral statement which may have been provided to Buyer was used for illustration only and not to represent that the Product would necessarily be of identical type or quality. The failure of either party hereto at any time, or for any period of time, to enforce a provision of this Sales Confirmation will not be construed as a waiver of such provision nor of the right of such party thereafter to enforce each and every provision. If any provision hereof is declared unenforceable by a court of competent jurisdiction, the remaining provisions will be enforced with the offending provision deleted.
15. Headings. The headings are for convenience only and are not to be used in the construction or interpretation of these terms and conditions.