TERMS AND CONDITIONS OF SALES
- This document contains all the terms and conditions with respect to the sale and purchase of the Product(s) named herein. By accepting delivery of the Product(s) named herein you are accepting the terms and conditions set forth below. No modification of or addition to these terms and conditions shall be of any force or effect unless Ideal expressly consents in writing. Further, no modification of or addition to the terms and conditions of the sale and purchase of the Product(s) named herein shall be effected by the receipt of acknowledgement or of purchase order forms and containing different terms and conditions and Ideal expressly objects to any such modifications or additions. Accordingly, Buyer may not assume that Ideal’s silence in response to any of Buyer’s past or future documents indicate acquiescence in Buyer’s terms and conditions. Rather, it is a Buyer’s responsibility to obtain Ideal’s express written consent to Buyer’s proposed additions or changes to the terms and conditions of the sale and purchase of the Product(s) named herein.
- Ideal warrants to Buyer alone that the product(s) sold hereunder is, as of the time of delivery to the carrier for shipment, in conformity with Ideal’s current specifications therefore, Ideal makes no other warranties, either expressed or implied, and in particular, IDEAL EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. Previous, or subsequent recommendations of Ideal for use of the product or any materials or apparatus in connection therewith are based upon Ideal’s best understanding of Buyer’s needs; however, it is expressly understood that Ideal is making no warranty of the result to be obtained and any technical advice furnished by Ideal with reference to the use of the product delivered hereunder is given gratis. Buyer acknowledges that Ideal assumes no obligation or liability for any advice given or results obtained, and Buyer understands that acceptance of any such advice is at his own risk. Products shall not be returned to Ideal without Ideal’s permission. Any claims against Ideal for a defect in product for which it may be liable hereunder must be presented in writing within thirty (30) days after discovery of such defects or within thirty (30) days after such defects could have been discovered in the exercise of reasonable inspection; provided that Buyer must, in any case, commence any action not later than one (1) year from the date of sale. It is expressly understood and agreed by the Buyer that his sole remedy for any measure of damages recoverable is limited to the Buyer’s return of the non-conforming goods and replacement thereof or refund of the purchase price.
- Title and risk of loss in all goods sold hereunder shall pass to Buyer upon Ideal’s delivery to carrier at shipping point or upon delivery by Ideal’s truck.
BUYER’S WARRANTIES AND ASSUMPTION OF DUTIES REGARDING SAFETY, HEALTH, UNLOADING, USE, HANDLING AND DISPOSAL OF GOODS.
Buyer has received a safety data sheet (SDS) which sets forth information concerning the goods and describes certain precautions to be taken in the storage, handling and use of the same. Buyer assumes the following duties and obligations.
- Buyer will familiarize itself with all information and precautions disclosed in safety and health information, including, but not limited to, any SDS transmitted to Buyer by Ideal before or after the delivery of the Product(s) named herein, or any such information supplied to Buyer by Ideal or otherwise available to Buyer from Ideal at any other time.
- Buyer will adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the goods, including such special care and practices as Buyer’s use of the goods requires, including, but not limited to, all such practices required by federal, state and local government statutes, rules, regulations or ordinances.
- Buyer will instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of goods, including, but not limited to information contained in Ideal’s most current SDS; and
- Buyer will comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to persons, property, or the environment. Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of the goods and that it possesses skill and expertise in handling, storage, transportation, treatment, use and disposal of the goods.
- Buyer will indemnify Ideal against all claims, loss, liability and expense (including but not limited to reasonable attorneys’ fees) on account of any damage to property or injury or death of persons (including Buyer’s employees) arising out of Buyer’s unloading, storage, handling, use or disposal of the goods except for any portion of damages attributable to Ideal’s negligence. This indemnity obligation of Buyer will survive the expiration, termination or cancellation of this contract.
- In no event shall Ideal be liable for special, indirect, punitive, speculative, or consequential damages. Buyer’s exclusive remedy hereunder shall be reimbursement of the purchase price of the Product(s) delivered hereunder with respect to which any claim is made whether such claim is in respect to any Product delivered or for non-delivery and whether or not based on negligence, breach of warranty or tort liability.
- Ideal shall not be liable for any delay in performance or non-performance caused by circumstances beyond its reasonable control including, but not limited to, Acts of God, fire, flood, government action, accidental, labor trouble, terrorism, or shortages or inability to obtain material, equipment, or transportation. Quantities so affected may be eliminated without liability, but the order shall remain otherwise unaffected.
- As respects all goods hereunder made especially for Buyer, Buyer warrants there is no U.S. patent or copyright covering them or Buyer has a right to have them made. Ideal shall not be liable to Buyer if sued for any U.S. patent copyright infringement for the manufacture, sale or use by other than Ideal of any goods made especially for Buyer hereunder but, if Ideal is sued, Buyer will defend Ideal and pay any awards against Ideal provided Ideal gives Buyer prompt written notice, permits Buyer to defend, and makes it employees and pertinent records available to Buyer to provide information for the defense. Buyer assumes all responsibility for use of any design, trademark, trade name, copyright or part thereof, appearing on the goods at Buyer’s request, and will defend Ideal and pay any awards against Ideal for alleged design, trademark, trade name or copyright infringement resulting from Ideal’s compliance with Buyer’s request.
- Except where containers are sold to Buyer, title to all returnable containers shall be and remain with Ideal. Credit for the return of containers for which a deposit is charged is conditioned upon (A) The use thereof by Buyer only for storage of goods originally shipped therein and (B) Reasonable prompt return in good condition not later than sixty (60) days from date of shipment. In the event of insolvency, bankruptcy, receivership or other insolvency proceedings, or if Buyer shall make an assignment for the benefit of creditors, or shall otherwise suffer or permit any third party to obtain actual or constructive possession thereof, Ideal shall have the right to retake all or any such containers and shall credit Buyer’s account with the amount of deposit on the containers retaken less any applicable differential charge previously agreed to by Buyer and Ideal. If, because of the breach of the above conditions, Ideal refuses to accept containers offered for return and credit, title to such containers shall then vest in Buyer, and all amounts deposited thereon shall become the property of Ideal.
- Buyer shall reimburse Ideal for all taxes, excises or other charges, excepting income taxes and franchise taxes based upon income, that Ideal may be required to pay to any government (national, state or local) upon the sale, production or transportation of the products (or materials) delivered hereunder.
- This contract shall be construed and given effect according to the laws of Tennessee and in the event that any dispute shall arise from this agreement, the Buyer agrees that such dispute shall be resolved in courts of competent jurisdiction in Shelby County, Tennessee and further agrees that it will be bound by the final resolution by the Tennessee courts of any dispute which may arise hereunder. Buyer irrevocably appoints the Secretary of State of Tennessee as his agent for service of process with respect to litigation arising out of this agreement and does hereby consent to and subject himself to the jurisdiction and venue of the Tennessee courts.
- Buyer agrees to pay all litigation costs, including reasonable attorneys’ fees, incurred by Ideal in seeking to enforce this contract.