Terms and Conditions of Sale Effective 7/16/09
1.0 SUBJECT MATTER OF SALE. Subject to these Terms and Conditions, SELLER shall sell and deliver, and BUYER shall purchase and accept, the rock, stone or other products (the "Products") as described and set forth on the invoice to which these Terms and Conditions are attached and incorporated (the "Invoice"). Issuance of the Invoice from SELLER to BUYER shall be deemed to be an acceptance of BUYER’s written or oral purchase order (a "Purchase Order"). BUYER’s purchase order shall be deemed to be BUYER’s acceptance of these Terms and Conditions.
2.0 PRICE; PAYMENT; TAXES; SPECIAL ORDERS. The purchase price ("Purchase Price") of the Products shall be as itemized and set forth on the Invoice. BUYER shall pay SELLER the Purchase Price on the date of the invoice or when payment is due as determined in writing by SELLER after BUYER’s submission of a credit application. Special Orders are noncancellable once production is begun, and payment is due when production is completed. In the event that BUYER is in default of any payment obligations, without prejudice to any of its other rights and remedies, SELLER reserves the right to charge interest on any unpaid invoice balance, without notice, at the rate of one and one-half percent (1.5%) per month, eighteen percent (18%) annually. In accordance with applicable law, SELLER shall collect from BUYER the appropriate sales and other taxes and governmental fees for the sale of the Products to BUYER, which taxes and fees shall be reflected on the Invoice.
3.0 DELIVERY. Transfer of title to Products shall be upon sale, FOB SELLER’s premises. Unless otherwise agreed in writing, BUYER shall be responsible for all pick-up and transportation. Risk of loss and risk of damage shall pass to the BUYER upon transfer to BUYER or BUYER’s transportation agent at SELLER’s premises.
4.0 LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE RELATED TO THE FURNISHING, PERFORMANCE, OR USE BY BUYER OR BY ANYONE ELSE OF ANY ASPECT OF ANY PRODUCT, INCLUDING WITHOUT LIMITATION ANY BODILY INJURY, DEATH, DISABILITY, IMPAIRMENT, INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, LOST PROFIT, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER.
5.0 INDEMNIFICATION. BUYER releases, defends, indemnifies, and holds harmless SELLER, its affiliated companies and agencies, and its respective shareholders, members, officers, directors, employees, agents, and representatives (each an "Indemnitee") from and against any and all liabilities, damages, business interruptions, delays, losses, claims, and judgments of any kind whatsoever, including all costs, attorneys’ fees, and expenses incidental thereto, which may be suffered by, or charged to, any Indemnitee by reason of: (i) the use of, or actions affecting, the Products; or (ii) any loss of or damage to any property, or any injury to or death of any person, or any impairment to the environment, in each case arising out of or by reason of any breach, violation, or non-performance by BUYER, its affiliated companies, or its respective shareholders, members, officers, directors, employees, agents, or representatives of any covenant or obligation of BUYER, or by any act or failure to act of any such person or entity, or by any act or omission of such person or entity, which constitutes a breach of duty imposed upon such person or entity by any applicable rule of law.
6.0 DISCLAIMER. ANY PRODUCTS WHICH MAY BE SOLD OR PROVIDED BY SELLER TO BUYER ARE SOLD OR PROVIDED “AS IS,” AND SELLER DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, OR NON-INTERFERENCE WITH ENJOYMENT, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE.
7.0 TERMINATION. Any Purchase Order, the Invoice, and these Terms and Conditions may be terminated by SELLER at any time immediately upon written notice, if BUYER has not paid any amounts due to SELLER for any invoiced amount. Termination under this Section shall not relieve BUYER's obligation to pay any amounts due and payable prior to the date of termination.
8.0 FORCE MAJEURE. SELLER will not be responsible for delays in performance and/or delivery occurring as a result of events which are beyond SELLER’s reasonable control including but not limited to acts of war, strikes or lockouts, fire, flood, earthquake, storm or tempest, riot, mutiny, insurrection, civil war, acts of Government, or delays of subcontractors or BUYER resulting from similar cause. To the extent that such causes actually delay performance on the part of SELLER, the time for the performance shall be extended for as many days beyond the applicable due date as is required to obtain removal of such causes.
9.0 GOVERNING LAW. This Agreement shall in all respects be governed by the laws of the State of Arkansas (excluding rules on conflicts of laws and excluding the Convention on Contracts for the International Sale of Goods). Each of SELLER and BUYER hereby submits to the sole and exclusive jurisdiction and venue of the courts situated within the State of Arkansas as the sole and exclusive forum where any and all disputes, controversies, and other differences between or among the parties and relating in any respect to any aspect of these Terms and Conditions and/or to any matter covered partly or totally by these Terms and Conditions. If either party takes action to enforce its rights hereunder, the prevailing party shall be entitled to recover its reasonable costs and expenses of enforcement, including, without limitation, attorneys’ fees.
10.0 MODIFICATION, CONSTRUCTION, SEVERABILITY, HEADINGS, ATTACHMENTS. No modification, amendment, waiver, or discharge of these Terms and Conditions shall be binding against either party unless stated in a writing signed by both SELLER and BUYER. Headings, as used in these Terms and Conditions, are for convenience of reference only and shall not be deemed or construed as in any way limiting or extending the language of the provisions to which such headings may refer. SELLER and BUYER agree that each provision of these Terms and Conditions is intended to be severable from every other provision, and the invalidity or illegality of any portion hereof shall not affect the validity or legality of the remainder hereof. The Invoice is hereby incorporated by reference as though repeated here verbatim.
11.0 ENTIRE AGREEMENT. These Terms and Conditions together with the Invoice constitute the entire agreement between the SELLER and BUYER with respect to the subject matter hereof and thereof, and shall supersede all previous communications, representations, or agreements, either oral or written, between SELLER and BUYER concerning such subject matter. No modification shall be effected by the acceptance of purchase orders containing different terms or conditions. These Terms and Conditions take precedence over any contradictory or conflicting terms and conditions set forth in a Purchase Order. Standard terms and conditions used by the BUYER, not referenced in these Terms and Conditions, shall not apply.