- Seller and Buyer are independent contracting parties, not principals or agents, partners, or joint venturers. Seller’s acceptance of Buyer’s order is made expressly conditional on Buyer’s assent to these terms and conditions, and Buyer’s acceptance of Baled Post-Consumer Recycled products (the “Product”) shall constitute assent to these terms and conditions. Upon Seller’s acceptance of Buyer’s order, these terms, together with the Product volume, price, and ship-to location given on Buyer’s order, shall together comprise the “Order”. Notwithstanding inconsistent, supplemental, additional, or different terms contained in Buyer’s purchase order, blanket order, acknowledgement, acceptance or other document, any Order shall be governed exclusively by these terms and conditions.
- THE PRODUCTS ARE OFFERED BY SELLER AND PURCHASED BY BUYER “AS IS,” AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, THOSE ALLEGEDLY ARISING FROM USAGE OF ANY TRADE OR FROM ANY COURSE OF DEALING, OR OTHERWISE.NO ORAL OR WRITTEN STATEMENT OR REPRESENTATION BY SELLER, ITS AGENTS, OR ITS EMPLOYEES SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION BEYOND THOSE PROVIDED IN THESE TERMS AND CONDITIONS. BUYER DISCLAIMS RELIANCE, AND IS NOT RELYING, ON ANY ORAL OR WRITTEN STATEMENT OR REPRESENTATION NOT EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS IN EVALUATING WHETHER TO SUBMIT ANY ORDER.
- The purchase price and these terms and conditions are the result of arms-length bargaining between the parties, each of whom represents that it is familiar with the market for Products and with transactions of this kind. Buyer is not relying upon any Seller statements or representations regarding the Product’s value, physical condition, environmental condition, or other attributes.
- Within 48 hours after Buyer’s receipt of each Product shipment, Buyer shall notify Seller of any claims that any Products purchased by Buyer from Seller does not conform to the Product description provided by Seller. Such notice shall be in writing and shall state such alleged non-conformance with specificity (“Non-Conformance Notice”). Buyer’s failure to timely submit any Non-Conformance Notice shall constitute a waiver of any and all claims and causes of action arising out of or related to any Product non-conformity.
- Seller shall have the right to inspect any Products covered by a Non-Conformance Notice during normal working hours at Buyer’s location. In the event that Seller, acting reasonably and in good faith, accepts Buyer’s assertions of non-conformance, THEN Seller shall, AT SELLER’s SOLE OPTION, EITHER (i) DOWNGRADE the Non-Conforming portion of the PRODUCT and revise the price for such downgraded portion; (II) refund to BUYER the pro-rata amount paid for such non-conforming PRODUCT or (III) credit BUYER’s account for the pro rata amount paid for such non-conforming PRODUCT; and Buyer will, at Seller’s option and expense, return all non-conforming PCR to Seller. THE remedy in this SECTION 5 is Buyer’s exclusive remedy for non-conforming Products. For the avoidance of doubt, a Seller shall only have an obligation to provide the remedy in Section 5 if and to the extent that the nonconformity set forth in the Non-Conformance Notice occurred prior to delivery to Buyer.
- Except for obligations to make payments when due, neither party shall be responsible for any failure to perform obligations assumed under any Order where such failure is directly or indirectly attributable to a Force Majeure Event, provided that the impacted party must provide the other party prompt written notice of the Force Majeure Event. As used herein, “Force Majeure Event” means any event or circumstance beyond the impacted party’s reasonable control that prevents said party from complying with its obligations under an Order, whether or not foreseeable.When Seller is impacted by a Force Majeure Event, Seller may increase the purchase price by the amount of Seller’s increased costs, may allocate its available supply of Product in an equitable manner, and may terminate this transaction without liability as to any unallocated portion of the Order.
- Any action by the Buyer for claimed breach by Seller must be commenced within one (1) year after the date Buyer receives the Product. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL, EVEN IF THE PERSON SEEKING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE. BUYER ASSUMES ALL RISKS AND LIABILITY FROM THE HANDLING AND USE OF THE PRODUCTS AND SHALL BE SOLELY RESPONSIBLE FOR TESTING AND DETERMINING SUITABILITY OF USE IN A PARTICULAR APPLICATION. Under no circumstances will Seller’s aggregate liability for any cause of action directly or indirectly arising out of any Order exceed the Order price.
- Unless otherwise agreed in a writing signed by Buyer and Seller, title and risk of loss or damage to Product shall pass to Buyer as the delivering transportation equipment departs the Seller’s shipping point. If Seller is to pay freight, selection of the carrier and routing of shipments is at Seller’s option.
- Shipping dates are approximate and conditional upon availability of Product. Seller does not guaranty delivery on a specific date and time.
- Seller’s quoted price does not include taxes. Any tax (other than on Seller’s income), excise, duty or governmental charge imputed to the Products or Seller’s acquisition, storage, or shipment of the Products, shall be for the account of Buyer. All sums shall be considered due and payable within terms as invoiced, are payable in legal US tender unless otherwise indicated, and made payable to the order of Seller at the designated address.
- If Buyer is, in any respect, in default of any obligations to Seller under any Order or contract, Seller may elect to defer further deliveries until the breach is cured or terminate the contract without prejudice as to any other remedy available. If, in Seller’s sole discretion, the financial responsibility of Buyer becomes unsatisfactory, Seller may reduce or eliminate the credit limit then in effect (if any) and/or demand advance cash payment and may withhold shipments until receipt. Interest on unpaid balances shall accrue at the lesser of 1% per month or the highest rate permitted by law.
- Buyer shall comply with all applicable laws and regulations governing the Product, the handling, storage, and use of the Product, or resale of the Product or goods made with the Product, including but not limited to laws and regulations governing the export of Product, trade restrictions, embargos, and the United States Foreign Corrupt Practices Act.
- Seller’s waiver, whether express or implied, of any breach of these terms and conditions shall not be deemed to be a continuing waiver of any subsequent or continuing breach, whether of like or different nature, nor shall such waiver limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Seller’s rights to enforce and compel strict compliance with every term and condition herein.
- The terms of this contract (i) may not be modified, terminated, or waived except as expressly provided herein or agreed to in writing by the party to be charged; (ii) may not be assigned by Buyer; and (iii) shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to choice of law principles. All claims, including tort claims, arising directly or indirectly out of these terms and conditions or any incorporating Order will be filed exclusively in the state or federal courts located in Harris County, Texas. The Parties expressly waive all objections to this venue and assent to personal jurisdiction therein. Jury Waiver. THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS OR ANY ORDER INCORPORATING THEM.