Terms & Conditions of Sale
Sales of products by Modern Mill, Inc., a Delaware corporation on behalf of itself, its current, past and future parents, subsidiaries and other corporate affiliates having its principal office in Fernwood, MS 39635 (collectively referred to herein as the “Company”), to the customer receiving these Terms and Conditions of Sale (“Customer”) are governed by these Terms and Conditions of Sale (the “Terms and Conditions”). Both parties may be individually referred to as a “Party” or collectively as the “Parties.” Any written quotation from Company, current Company price list, and these Terms and Conditions shall constitute the entire agreement between Company and Customer, unless Company and Customer have executed a written agreement which includes additional and/or different terms, in which case such written agreement executed by the Parties shall prevail over these terms. COMPANY’S ACCEPTANCE OF CUSTOMER’S OFFER TO PURCHASE PRODUCTS OR SERVICES IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THESE TERMS AND CONDITIONS. If these Terms and Conditions are construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Customer’s acceptance of the products shall manifest Customer’s assent to these Terms and Conditions. These Terms and Conditions may not be waived, amended, or modified except by a written instrument signed by both Customer and Company. The word “products” as used herein shall mean all goods sold by Company to Customer.
2. Payment Terms
Unless otherwise agreed upon in writing, pricing shall be determined by the then-current Company price list or Company provided quote, at the time of purchase. Subject to credit approval by Company, which may be revoked upon written notice, payment terms shall be net thirty (30) days from invoice date unless otherwise specified on the invoice. Past due amounts shall accrue interest of one and one half percent (1 1/2%) per month or the highest rate permitted by law, whichever is lower. Any sales, use or other taxes which the Company may be required to pay or collect with respect to the sale, manufacture, delivery, storage, use or shipment of any products or services sold to Customer shall be paid by Customer. Any credit terms offered by Company are available only so long as Customer fulfills all obligations under the terms and conditions herein including, but not limited to, timely payment of invoices within stated terms. Company reserves the right in its sole judgment to require satisfactory security before shipment of products to Customer. Customer grants to Company a security interest in all products and in all proceeds thereof until the complete purchase price and all additional costs are paid by Customer. Company may, at its option, file documents reasonably required to protect Company’s security interests in the products and Customer agrees to cooperate with Company in taking such actions. If Customer defaults in payments under any order, Company, at its option, may defer further shipment under any order from Customer until Customer re-establishes satisfactory credit, or Company may cancel the unshipped portion of any order without any liability on the part of Company for failure to ship. Customer shall not be entitled to deduct from the price invoiced by Company any claim by Customer against Company. If Company finds it necessary to employ an attorney or third party agent to collect any past due amounts owed, it may collect, in addition to any other sum owed, its reasonable fees expended for such collection services.
3. Shipment and Delivery
(a) Unless otherwise agreed by Customer and Company, delivery shall be FOB Company’s manufacturing plant. Title and risk of loss shall pass to Customer at Company’s manufacturing plant. Selection of carrier is reserved by Company. Any increase in delivery costs resulting from Customer’s instructions to the carrier or from receiving delays caused by Customer shall be charged to Customer’s account. Commercially reasonable efforts shall be made to deliver goods at the desired time, however delivery dates are not guaranteed.
(b) Production and delivery of products are subject to restrictions, labor difficulties, civil disturbances, accidents, fires, flood, windstorm, government regulations, delays of carriers including but not limited to railcar shortages, shortage of raw materials, energy, or acts of God, and any other cause (whether or not similar to causes listed above) beyond Company’s reasonable control (“Force Majeure Event”). During any such Force Majeure Event, the Company shall be excused and not liable for delay in delivery, inability to deliver or failure to deliver or perform its obligations hereunder, and Company shall have the right to allocate its available supply among its customers in its sole discretion.
(c) Company shall retain a security interest in all products supplied to Customer until Company is paid in full for any amounts owed to Company by Customer, and the Company shall have the right to file any documents necessary to establish protection of such security interest in the products.
Customer may not return products without first obtaining Company’s prior written consent. Returns are subject to restocking charges, plus shipping charges and any required repackaging of products. Custom orders are not returnable or refundable.
5. Standard Tolerances; Warranty; Disclaimer
Products are to be within the limits and of the sizes published by Company, and subject to Company’s standard tolerances for variations. Company warrants that the products will conform with the warranties either available at www.modern-mill.com (the “Warranty”) or by written request to the Company. Customer’s sole remedy, and Company’s sole obligation, in connection with a breach of the Warranty is, in Company’s sole discretion, Company’s replacement or repair of such product or the issuance of a credit for such product (provided such product has not been altered, misused or not maintained in accordance with Company’s or manufacturer’s instructions or as otherwise set forth in the Warranty), and provided claim therefore is made by Customer in accordance with the terms of the Warranty and as specified on Company’s quote if applicable. This procedure shall include but not be limited to proof of purchase, picture of defective product, and written description of defect sent to Company. Company reserves the right to investigate any claim hereunder. Product that has been removed without the opportunity to investigate shall not be covered by the Warranty. Company shall not be held responsible, nor will any claim be allowed for the cost of labor charges of any kind expended or incurred in connection with defective products. EXCEPT FOR THE SPECIFIC TERMS OF THE WRITTEN WARRANTY REFERENCED IN THIS SECTION 5, COMPANY MAKES NO GUARANTEE OR WARRANTY, EXPRESSED, OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Except as specifically set forth herein, no other statement, warranty, representation or information regarding the product or services provided by Company hereunder, oral or written, shall be legally binding upon the Company or shall be the basis for reliance by Customer.
6. Limitation of Liability
NOTWITHSTANDING WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, COMPANY’S LIABILITY HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT GIVING RISE TO SUCH LIABILITY, REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR LOST GOODWILL, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Permitted Variations
Without notice to Customer, Company may at any time make any change or variation in the products or the execution of the order which, in Company’s opinion:
(a) does not affect the general characteristics or properties or bring about a material impairment of quality or function of the products, or
(b) is required to comply with any requirement imposed by law or public authority.
8. Product Safety and Information
Customer agrees to comply with all OSHA and other safety-related laws, regulations, standards and requirements which are applicable to the products. Customer acknowledges that the products manufactured cannot be burned or used as a heat or fire source. Customer acknowledges that products are to be used in accordance with Company’s labeling and literature concerning the products, including but not limited to installation guidelines or third-party testing or building code reports.
9. Limitation of Actions
Customer may not bring any action or claim against Company, on any theory whatsoever, related to the Terms and Conditions or products more than one (1) year following the accrual of the action or claim.
10. Nature of Relationship
Customer understands that its relationship with Company under the Terms and Conditions and in connection with the purchase of any products from Company hereunder is only that of a buyer and seller of goods. Under no circumstances whatsoever shall any type of franchisee, dealership, or distributorship arrangement or obligation be created in connection herewith, unless established in a formal written agreement signed by both Customer and Company. Any technical data or advice furnished by Company with respect to the products and use of the products given without charge and Company assumes no obligation or liability for such information.
11. Termination by Company
Company may terminate an order from Customer immediately by written notice to Customer without liability or further obligation hereunder if Customer fails or refuses to furnish Company with such information and assurances as Company may request about Customer’s financial and operating conditions as affecting Customer’s ability to purchase products and, to the extent permitted by law, in the event of Customer’s insolvency, the filing of a voluntary or involuntary petition in bankruptcy by or against Customer, the appointment of a receiver or trustee for Customer, Customer’s execution of an assignment for the benefit of creditors, or a comparable event.
The failure of Company to insist upon strict compliance with any or all of the terms and conditions herein contained shall not be deemed to be a waiver of any such terms and conditions or of any rights or remedies which Company shall have in demanding strict compliance with all of the terms and conditions contained herein. Company may freely assign the Terms and Conditions.
13. Governing Law; Jurisdiction
All issues concerning the performance or interpretation of any contract regarding the purchase of any product shall be governed by the laws of the State of Delaware, excluding its conflicts of laws principles, and the applicable laws of the United States of America. Any action arising out of these Terms and Conditions shall only be brought in a court of competent jurisdiction located in the State of Delaware, and the Parties hereby consent to proper jurisdiction and venue lying in such forum. The prevailing Party in any proceedings or dispute resolution procedures in relation to these Terms and Conditions shall be entitled to recover against the non-prevailing Party the reasonable attorneys’ fees, court costs, and other expenses incurred by the prevailing Party incurred as a result of proceedings
If any provision of these Terms and Conditions is held by a court of law to be illegal, invalid, or unenforceable, that provision shall be severed from these Terms and Conditions and the remainder of these Terms and Conditions will continue in full force and effect.
Any notice or other communication related to these Terms and Conditions shall be effective if sent by courier with tracking, first class mail, postage prepaid, to the address set forth in this Agreement, or to such other address as may be designated in writing to the Customer or Company.
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