CONDITIONS OF SALE

  1. PRICE. The prices, terms and conditions, set forth for the sale of the material involved to customers of Buyer’s classification in effect on the date of shipment from Seller’s plant shall apply to the sale of the material covered hereby, and Seller’s acceptance is expressly conditional upon Buyer’s assent to such prices, terms and conditions. The price, if any, set forth on the front hereof is the price in effect as of the date hereof and is included thereon for information only. Unless otherwise specified, Seller’s prices do not include sales, use, excise or similar taxes, and the amount of such taxes applicable to the production, sale or use thereof shall be for the Buyer’s account.
  2. INSTALLMENTS. Seller reserves the right to make deliveries of the material covered hereby in installments. Each shipment made by Seller to Buyer shall be considered a separate and independent transaction, and the price for each shipment shall be determined and payment therefor shall be made accordingly. Buyer may not refuse to accept any lot or shipment of any material covered hereby on the ground that there has been a failure to deliver any other lot or that material in any other lot was nonconforming.
  3. DELAYS. Any time for shipment or delivery specified hereon (or valid modification or addition) constitutes only an estimate of the approximate time therefor, and delivery shall be timely if made within 90 days after any shipping date so specified or within two months following any specified adequate labor supply, accidents to or breakdown of machinery or equipment, failure of usual sources of supply of material, government controls or restrictions of any kind, delay or failure of transportation, war, armed conflict, invasion, insurrection, embargo, blockade, fire, force majeure, acts of God, or any other contingencies beyond Seller’s control, whether related or unrelated or similar or dissimilar, Seller shall have no liability whatsoever. In any such event, however, either party
    shall have the option, by giving notice to the other, to cancel from the provisions hereof the quantity Seller fails to timely deliver as a result of any of the aforementioned contingencies, but the provisions hereof shall otherwise remain unaffected. Should shortages occur in Seller’s supply of the material by reason of any of the aforesaid contingencies, allocation in accordance with Section 2-615(b) of the Uniform Commercial Code will not be required.
  4. DELIVERY. Unless specifically designated otherwise on the front hereof, delivery and transfer of title to Buyer will take place upon arrival of the material covered hereby, f.o.b. carrier, at designation specified by Buyer, except that if Buyer picks up material at Seller’s plant, or any other location, delivery and transfer of title will take place at point of pick-up. Except as provided in Conditions Nos. 6, 7, and 8, Seller’s liability shall cease upon such delivery, and all risk of loss and damage shall fall upon Buyer. The provisions of Section 2-510 of the Uniform Commercial Code are not applicable hereto.
  5. PAYMENT. Terms of payment are from date of invoice, not date of shipment or delivery to Buyer. Buyer will not be entitled to any cash discount on the payment of any invoice when Buyer is indebted to Seller for any overdue amount. If Buyer is in default in payment of any shipment, or if Seller shall have any reasonable grounds to doubt at any time Buyer’s financial responsibility, Seller shall have the right, in addition to anyother rights it may have to stoppage in transit and/or to decline to make further shipments or deliveries except upon full payment therefor in advance. Shipments and deliveries shall at all times be subject to the continuing approval of Seller’s Credit Department. BUYER SHALL MAKE NO DEDUCTIONS (INCLUDING THOSE FOR ALLEGED DAMAGES) FROM ANY PAYMENT DUE HEREUNDER, UNLESS SPECIFICALLY AUTHORIZED BY SELLER.
  6. WARRANTIES. THERE IS NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY AND NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE) EXCEPT THAT THE MATERIAL SHALL BE OF SELLER’S STANDARD QUALITY FOR THE PARTICULAR TYPE AND GRADE OF MATERIAL DESCRIBED ON THE FACE HEREOF. It is expressly understood that any technical or other advice furnished by Seller or its representatives, including advice concerning the use, selection, or characteristics of the material sold hereunder, shall be construed to be given without consideration to the quality of the goods sold hereunder and to be mere statements of opinion, with respect to which Seller assumes no obligation or liability. Buyer assumes all risk with respect to any use made of such advice.
  7. SELLER’S LIABILITY. Seller shall have no obligation nor liability for any special, indirect or consequential damages (including loss of prospective profits, downtime, labor, damage to machinery, equipment and supplies) on account of breach of warranty or breach of any other condition or term hereof. No claim of any kind, whether as to material delivered or for non-delivery of material or otherwise, shall be greater in amount than the purchase price of the material in respect of which damages are claimed. Seller’s sole obligation as to any material that fails to conform to Seller’s standard quality shall be limited to replacement thereof, or, at Seller’s option, to refunding the purchase price thereof. Unless Buyer shall give written notice of claim to Seller within 30 days from date of invoice of the material involved, Buyer shall be deemed to have waived all claims in respect thereof. In the event Buyer gives Seller notice of claim, Seller shall have the right to inspect the material at Buyer’s plant and on Buyer’s equipment. No claim will be allowed at any time after the material has been treated or processed in any manner or resold. Buyer assumes all risk and liability with respect to the use of the material involved, whether used alone or in combination with other products, and Buyer shall have the sole responsibility for determination of the suitability of the material for the use contemplated by Buyer. Any action brought by Buyer for breach of any term hereof must be commenced within one year after the cause of action has accrued.
  8. PATENTS. Seller represents that to the best of its knowledge the normal use or the resale of the material involved will not infringe the valid claims of any United States patent covering such material itself, but does not warrant against infringement by reason of the use or resale thereof in combination with other material or in the operation of any process. Seller agrees to indemnify Buyer against all judgements, decrees and costs resulting from any claim of such infringement referred to first above, provided Buyer gives Seller prompt notice of any such claim and full authority, information, and assistance for the defense or settlement of such claim.
  9. MISCELLANEOUS.
    (a) Buyer’s rights, interests, or obligation hereunder may not be transferred, delegated, assumed or assigned, in whole or part without prior written consent of Seller. This agreement and all rights hereunder are freely assignable by Seller.
    (b) The failure of either party to enforce or insist on performance of any of the provisions of these conditions, at any time, shall not be construed as a waiver of any such provision, and shall not affect or limit in any way such party’s right thereafter to enforce and compel compliance with every term and condition hereof.
    (c) The terms and conditions hereof may be modified or rescinded only by a writing signed by both parties or their duty authorized representatives.
    (d) These Conditions of Sale supersede or modify any prior written or oral agreement or previous course of dealing between the parties.
    (e) The Buyer represents that he is not insolvent as that term is defined in Section 1-201(23) of the Uniform Commercial Code, and agrees to notify Seller if Buyer becomes insolvent before delivery of the material.
    (f) The construction, performance and completion of the terms hereof shall be governed by the laws (Including the Uniform Commercial Code) of the State of California and that venue and jurisdiction in any dispute shall be the Los Angeles Superior Courts. In any action to enforce these Conditions of Sale, the prevailing party shall be entitled to its attorney’s fees and costs.