1For the purposes of these Terms and Conditions of Sale, Seller shall mean Western Explosives Systems Company or “WESCO” and Buyer shall mean the customer purchasing goods and/or services from Seller.
2Acceptance by the Buyer of each delivery shall constitute a separate contract with respect to the amount thereof. All amounts payable hereunder shall be paid in cash, by direct electronic transfer, or in negotiable paper collectible at its face value in United States funds at location indicated on Seller’s invoice, without deduction of exchange fluctuations, customs or other charges which are imposed upon the transaction by or on behalf of or at the instigation of Buyer’s government or its agencies. In the event Seller is forced to initiate legal action to recover any sums due here under, Buyers shall be responsible for Seller’s reasonable attorneys’ fees and all costs associated with collection of the same.
3Unless expressly provided otherwise, Buyer shall pay the amount of any tax or other charge now or hereafter imposed by law, upon, with respect to or measured by the sale, shipment, use or price of any material or service purchased hereunder.
4In the event the Buyer requests Seller to accept merchandise returns in lieu of payment therefore, Buyer shall, upon approval of Seller, return merchandise to such location as Seller designates, freight prepaid, and agrees to pay Seller’s current standard restocking charges as may be amended from time to time in Seller’s sole discretion.
5In the event the Buyer fails to fulfill the terms of payment or in case Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may in its sole discretion and without claim by Buyer decline to make further deliveries except upon receipt of cash or satisfactory security.
6Seller warrants that the materials sold hereunder shall be of Seller’s (or Seller’s supplier’s as the case may be) standard quality. Buyer assumes all risk and liability whatsoever resulting from the possession, use or disposition of such materials, whether used singly or in combination with other substances. Liability of the Seller to Buyer, if any hereunder, for breach of contract, negligence or otherwise, shall in no event exceed in amount the purchase price of the materials sold with respect to which any damages are claimed. Within thirty (30 days after any shipment reaches its destination (but in no event later than ninety (90) days after shipment leaves Seller’s plant) the materials shall be examined and tested and promptly thereafter and before the materials are used, Seller shall be notified in writing in case materials are found defective or short in any respect. Failure to so notify Seller shall constitute absolute acceptance by Buyer of the goods and shall be deemed a waiver of all claims with respect to the goods or materials, and in any event the use of the materials shall be deemed to mean that the Seller has satisfactorily performed. Seller’s specifications are subject to change without notice to Buyer. SELLER’S WARRANTY OF STANDARD QUALITY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE MATERIALS SOLD HEREUNDER, AND THERE ARE NO AGREEMENTS OR WARRANTIES, EITHER ORAL OR WRITTEN, COLLATERAL TO OR AFFECTING THIS AGREEMENT. In no event shall Seller be liable to Buyer for indirect, special, punitive or consequential damages, including without limitation lost profits, loss of revenue, or lost opportunity.
7Seller shall not be liable for any failure to deliver or for any delay in delivery, and Buyer shall not be liable for any failure to request delivery or for any delay in requesting delivery, when any such failure or delay shall be caused (directly or indirectly) by fires, floods, accidents, explosions, equipment or machinery breakdown, sabotage, strikes or other labor disturbances, civil commotions, riots, invasions, wars, acts, restraints, requisitions, regulations or directions of Government, voluntary or mandatory compliance by Buyer or Seller with any request of the United States Government for purposes of national defense, inability to obtain or delays of transportation facilities, any act of God, or any cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of Buyer or Seller. If by reason of any such causes the Seller’s supply of any such materials shall be limited, Seller shall have the exclusive right (without liability) to satisfy its own needs and thereafter to distribute any remaining available supply among all its customers in such manner as shall be determined by Seller. If any such disability shall continue for more than thirty (30) days, the undelivered quantities during such period of disability may be cancelled (without liability) at the option of either party to be exercised by giving written notice to the other party at any time during the period of this Agreement.
8Each domestic rail or truck shipment shall be inspected at the time of delivery by the carrier; in the event of loss or damage, a statement describing the loss or damage shall be secured from the carrier’s agent.
9Title to and risk of loss on all material sold hereunder shall pass to Buyer upon Seller’s delivery to common carrier at point of shipment whether or not Seller pays all or any part of the freight. If Seller provides delivery via its own transportation, title and risk of loss shall pass at the time the carrier reaches Seller’s destination, irrespective of whether the materials or goods have been unloaded.
10If any law shall fix a maximum price for any good, material or service covered by this Agreement, Seller, without liability, may, upon written notice, terminate this Agreement with respect to further shipments of the material affected.
11Returnable containers shall be returned by Buyer within three (3) months from date of shipment. Title to all such containers shall remain in Seller or Seller’s supplier if material is not manufactured by Seller. Buyer, in accordance with Seller’s container schedule, shall make a deposit for each returnable container, and the amount of such deposit shall be paid by Buyer at the time of payment of the invoice for the material shipped in the container. Each deposit shall be refunded by Seller to Buyer promptly after the container is returned, provided the container is in good condition and has been used only for the storage and delivery of the material sold hereunder.
12With respect to U.S. sales, Seller certifies that the material or goods sold are produced in compliance with the Fair Labor Standards Act of 1938, as amended, and that the prices charged are not in excess of maximum prices permitted by law.
13Upon request, the Seller will furnish such technical advice or assistance as it deems appropriate in reference to the use of its products or services by Buyer; it is expressly understood, however, that all such technical advice or assistance is rendered without compensation and the Seller assumes no obligation or liability for such advice or assistance given or results obtained.
14On export orders Seller reserves the right to claim any drawback that may apply to this order, and Buyer shall supply Seller with a certified copy of the onboard bill of lading as evidence of exportation from the United States. Unless otherwise expressly provided on the reverse side, if material is sold in CIF terms, Seller shall take out war risk insurance if obtainable as defined by the American Institute of Marine Underwriter and/or the American Cargo War Risk Re-Insurance Exchange, and the entire amount of the premium shall be included in the CIP price set out on the reverse side. Any increase in War Risk Insurance rate over that included in the CIP price shall be charged to Buyer at Seller’s option. In addition, any charge in ocean freight from that included in the CIP or C&F price shall be for Buyer’s account at Seller’s option.
15If at any time any condition shall arise which shall impede or restrict free exchange of money or goods between the country and/or territory covered by this order and the United States of America, then deliveries hereunder may be suspended during the continuance of any such condition, or this order may be forthwith terminated by either party.
16If this document covers a free sample, this clause applies in lieu of Seller’s warranty of standard quality. ALL FREE SAMPLES ARE FURNISHED “AS IS” and the recipient agrees to assume all risk and liability whatsoever for injury or damage to persons or property or otherwise resulting from the handling or use of the sample. By accepting the sample, the recipient agrees that he will not purchase the material for commercial use until he has first determined that the material is merchantable and fit for the particular purpose for which the material is purchased and that the proposed use is satisfactory within the requirements of all applicable laws.
17Seller’s or Buyer’s waiver of any breach or failure to enforce any of the terms or conditions of this contract shall not in any way affect, limit or waive such party’s right at any future time to enforce strict compliance with every term and condition hereof.
18If this order contains a notation that it is placed under a U.S. Government contract or subcontract, then there are also incorporated herein such current Government contract provisions as are required by reason of statute and Executive Order.
19Sale of all goods and materials are made subject to the terms and conditions above. Any payments not made by the due date shall bear interest at the rate of 1½% per month, or the maximum rate permitted by applicable law, whichever is less.
20Seller reserves the right to adjust prices in its discretion if its costs increase in any material way as a consequence of a new or amended law or regulation, material market change, or other event or occurrence outside the control of Seller that results in an increase in the cost of providing services or products.