TERMS & CONDITIONS
PROFILE CUSTOM EXTRUSIONS, LLC STANDARD TERMS AND CONDITIONS
1. Controlling Terms and Conditions. The Seller objects to, and shall be bound by any term or condition on the Buyer’s order that is different from or in addition to the Seller’s terms and conditions. Any additional or different terms or conditions proposed by the Buyer are hereby expressly rejected. No terms, conditions, description, price or quantity shall be changed, and no agreement or understanding in addition to or different from the terms and conditions stated herein shall be binding upon the Seller without written authority from the Seller’s authorized representative.
2. Price. Unless otherwise specifically indicated in the applicable order, all prices are exclusive of any freight costs and any sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental body on the sale, delivery, use or other handling of the goods or in connection with any transactions contemplated herein. All prices are F.O.B. Seller’s shipping point (Rome, Georgia).
3. Terms of Payment. Unless otherwise indicated with the applicable purchase order, terms are net [thirty] days from date of Seller’s invoice. If the Buyer fails to pay by the due date any sum required to be paid by the Buyer to the Seller hereunder, the Buyer will pay to the Seller for each delinquent payment or part thereof interest from the due date until paid at the rate of Prime Interest Rate plus 6%, unless limited by applicable law. Seller shall also have the right, among other remedies, either to terminate the order or to suspend further performance in the event Buyer fails to make any payment when due. The Buyer shall also pay to Seller all reasonable costs and expenses (including but not limited to attorney’s fees) incurred by the Seller in connection with the Seller’s efforts to collect such delinquent payment(s).
4. Separate Sale. Each delivery hereunder shall be deemed a separate sale, and failure of the Seller to make delivery hereunder shall not affect this contract with respect to any other delivery hereunder.
5. Delivery. Unless otherwise indicated in the applicable order or if delivered only by our trucks, title, and all risk of loss or damage to goods shall, unless otherwise agreed to in writing by the parties, pass from Seller to Buyer upon delivery of goods to the carrier for delivery, F.O.B. Seller’s shipping point. Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier within ten days of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s), all shipping dates are approximate. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any goods for which Buyer has not provided shipping instructions. If the shipment of the goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.
6. Warranties. The Seller warrants that the material delivered hereunder shall conform to the specifications or grade described herein, with any stated tolerances. The Seller makes NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Buyer assumes all risks incurred in the use of any material delivered hereunder. Any claims that material delivered hereunder does not conform to the specifications set forth herein must be presented by the Buyer to the Seller within thirty (30) days after delivery thereof.
7. Force Majeure. The Seller shall not be liable for failure to make any delivery hereunder caused by or resulting from events or circumstances beyond Seller’s reasonable control, including strikes, fires, floods, wars, riots, loss, destruction or unavailability of raw material, non-availability of transportation facilities, disruption of utilities, delays of carrier, embargoes, accidents, restrictions imposed by any government or government authority. The time of the Seller to make delivery hereunder shall be extended during any period in which such delivery shall be prevented or delayed by reason of any of the foregoing causes, provided that if any delivery hereunder be so prevented or delayed for more than three (3) months either party shall have the right to cancel this Order with respect to such delivery by written notice to the other.
8. Limitation on Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (including loss of anticipated profits, business interruption, loss of use or revenue, cost of capital or loss or damage to property or equipment) arising in any way from the relationship of the parties or the production, sale or delivery of the goods by Seller.
9. Liquidation. Without limiting any other rights that may be available to the Liquidating party, in the event (each, a “Default”) that a party hereto (the “Defaulting Party”) is the subject of a bankruptcy, insolvency, reorganization or other similar proceeding, or fails to pay its debts generally as they become due or otherwise is bankrupt or insolvent, then the Liquidating party shall have the right to liquidate an undelivered, unpaid transaction for material(s) and/or to liquidate any or all other agreements between the parties for the purchase and sale of material(s) or swaps with respect to the prices thereof or options on any of the foregoing (collectively “Transactions”) then outstanding by closing-out this transaction and any other transaction being liquidated, calculating the loss, if any for each such transaction, and aggregating or netting such amounts and any and all other amount(s) owing under this transaction or any other transaction being liquidated to a single liquidated settlement payment that will be due and payable within one (1) business day after the liquidation is completed.
10. Termination. The Seller shall have the right in its sole discretion, by notice given to the Buyer, to terminate any order upon the occurrence of any direct or indirect, voluntary or involuntary, sale, lease, transfer, assignment, merger, consolidation or other disposition of the Buyer’s assets, it being understood that in the event such shall occur (and without prejudice to the termination remedy specified), (x) the Buyer shall remain fully liable for its obligations under this Agreement, and (y) the transferee of such assets or such facility shall also be liable for all obligations of the Buyer under this Agreement.
11. Entire Agreement. This order contains the entire agreement between the parties and supersedes any prior oral or written agreements or communications between them relating to the subject matter hereof.
12. No Assignment; Waiver. The Buyer may not transfer, assign, pledge or otherwise dispose of this order, or any interest or right hereunder, without the express written consent of the Seller. Waiver by the Seller of the operation of any provision of this order or of any breach by the Buyer shall not constitute a continuing waiver.
13. Choice of Law. This Order shall be governed by and construed in accordance with the laws of the State of Georgia without regard to conflicts of laws. Any controversy or claim arising out of or relating to this Order shall be submitted to arbitration in Floyd County, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association.