TERMS and CONDITIONS of SALE

  • 1. GENERAL. These Terms and Conditions of Sale, together with the Personalized Price Agreement (the “PPA”) between B & W Fiber Glass, Inc. (“B&W”) and BUYER (collectively “this “Agreement”) shall constitute the entire agreement between B&W and BUYER with respect to the sale of any B &W goods or product (“Product”) to BUYER. All purchases from B&W by BUYER are expressly limited to and conditioned upon the terms and conditions of this Agreement. Any additional or conflicting terms and conditions contained in, attached to or referenced by any purchase order or document other than the PPA, or any prior or later communication between BUYER and B&W, are expressly rejected by B&W and shall have no application to the purchase of any Product unless such provisions are expressly agreed to by B&W in writing and executed in accordance with Paragraph 18 of this Agreement. BUYER’s submission of a purchase order or any other order shall in all cases constitute BUYER’s unqualified and unconditional acceptance of this Agreement. Any order received by B&W shall be a legally binding purchase obligation of BUYER and subject to the terms of this Agreement. BUYER’S EXCLUSIVE REMEDIES ARE SET FORTH IN PARAGRAPHS 9 AND 10 OF THIS AGREEMENT.

    2. TITLE AND RISK LOSS. All deliveries shall be FOB at the point specified in the PPA. Title to and risk of loss on Product passes to BUYER when Product is delivered to a common carrier at the delivery point. After passage of title of Product to BUYER, BUYER assumes all risk and liability, and B&W shall not be liable to BUYER for any loss or damage to persons, property, or the environment arising out of or related to Product.

    3. TAXES AND DUTIES. All taxes, duties, tariffs, consular fees, levies, penalties, and other charges now or hereafter imposed by any governmental authority with respect to this Agreement or with respect to the sale, delivery, transportation, importation, exportation or proceeds relating to a Product soled hereunder or on remittance of funds in payment for Product shall be paid by BUYER. BUYER agrees to reimburse B&W for any such amounts paid by B&W. Such reimbursement shall be paid within ten (10) days of receipt of written notice from B&W.

    4. INDEMNIFICATION. To the fullest extent permitted by and under law, BUYER, its affiliates, agents, principals, successors and assigns shall defend, indemnify and hold B&W, its affiliates and their respective employees, agents, officers, directors, and stockholders, successors, and assigns (collectively “Indemnitees”) harmless from and against any and all claims, demands, lawsuits, causes of action, strict liability claims, penalties, fines, administrative law actions and orders, expenses (including attorneys’ fees and expenses) and costs and liabilities of every kind and character (“Claims”) which may arise for any reason whatsoever, including, without limitation, personal injuries, death, damage to property or the environment, regardless of whether based on negligence, strict liability, contract, or breach of warranty, arising out of or related to a breach of its obligation under this Agreement or the sale or use of a Product or material made in whole or in part from a Product sold hereunder. BUYER’s duty and obligations under this Section shall survive the termination, cancellation or expiration of the order contemplated by the Agreement or the sale or use of Product or material made in whole or in part from a Product sold hereunder. BUYER’s duty and obligations under this Section shall survive the termination, cancellation, or expiration of the order contemplated by the Agreement and the cessation of any business transactions between BUYER and B&W.

    5. DELIVERIES. (a)If the PPA does not designate a method of shipment, B&W may select any reasonable method of shipment without liability by reason of its selection. Delivery dates are approximate. B&W shall not be liable to BUYER for damages or charges resulting from a delay in the delivery of a Product. B&W reserves the right to assess additional charges for non-standard shipments, short lead time on orders, order changes, and order cancellations. All shipment, insurance and similar charges shall be borne by BUYER.

    (b) If and to the extent that the delivery point for Product sold hereunder is any B&W facility, B&W shall have the right to require the execution of an access and/or confidentiality agreement prior to granting BUYER, its carriers, contractors, or agents, access to such facility. BUYER shall comply, and shall ensure that its carriers, contractors and agents shall comply, with all of B&W’s safety rules and regulations when they are at any of B&W’s facilities.

    (c) For all deliveries, BUYER is solely responsible for offloading and unloading all Product. To the extent BUYER fails to offload or unload the entire quantity of Product from the transport or container utilized for shipment, then the following shall apply: (i) any residual or remaining Product shall be deemed to have been abandoned by BUYER for the beneficial use or re-use by B&W; (ii) BUYER will not receive credit, payment or other consideration for any residual or remaining Product; and (iii) BUYER is solely responsible for the transportation of such residual and remaining Product until received and accepted by B&W.

    6. COMPLIANCE WITH LAW. (a) The parties shall comply with all laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions, or decrees of any governmental authority having jurisdiction (“Laws”) pertaining to the fulfillment of the Agreement.

    (b) BUYER will be responsible for compliance with all Laws applicable to the Product once the Product has been delivered by B&W in accordance with this Agreement, including, without limitation, those related to operations, safety, maintenance, equipment, size and capacity and pollution prevention.

    (c) If any license or consent of any government or other authority is required for the acquisition, carriage or use of Product by BUYER, BUYER will obtain the same at its expense, and if necessary, provide evidence of the same to B&W on request. Any expenses or charges incurred by B&W resulting from such failure will be paid for by BUYER within ten (10) days of receipt of B&W’s written request.

    7. CLAIMS/DEFECTS (a) BUYER shall, at its sole cost and expense, inspect Product delivered hereunder within a reasonable period of time after receipt.

    (b) An “Apparent Defect” of a Product is defined as a visible damage identifiable on receipt of the Product, or on opening of the packaging, including any shortages. Any claim for an Apparent Defect must be made the BUYER to B&W no later than five (5) working days (“Inspection Period”) from receipt of the Product, and must be accompanied by the documents required in subsection (e) of this Paragraph 7.

    (c) BUYER’s failure to give written notice to B&W of an Apparent Defect or shortage within such five (5) day period shall constitute a waiver by BUYER of any claims based on an Apparent Defect.

    (d) Any claim other than Apparent Defects of the Product must be made by BUYER, in writing, no later than three (3) months following delivery of the Product and must be accompanied by the documents identified in subsection

    (e) of this Paragraph 7.(e) For all claims, the following information and documents must be supplied: the invoice number; a photocopy of the delivery label; an exact description of the anomaly or defect alleged, and, if possible, photos of the alleged defect.

    (f) B&W, at its sole discretion, may reject any claim unless all documents are accompanied with the claim.

    (g) In the event of a claim, the Product delivered must be made freely accessible to B&W for inspection a date and time mutually agreeable to the parties. BUYER’s failure to make the Product accessible for an inspection within fourteen days of such request shall result in an unqualified acceptance of the Product.

    (h) Returns of Product will be permitted if a claim has been made in accordance with this Section 7 and B&W expressly authorizes the return.

    8.
    PAYMENT TERMS/CREDIT. (a) BUYER shall pay all invoices, without deduction, in US currency. If the PPA does not state payment terms, payment shall be received by B&W no later than thirty (30) days from the date of B&W’s invoice. BUYER shall pay B&W interest on the outstanding amount of any unpaid invoice at a rate of one percent (1.0%) per month compounded monthly, from the due date until paid.(b) B&W makes no assurance or guarantee regarding any amount of credit to be extended to BUYER or the continuation of such credit. If B&W, in its sole discretion, provides BUYER with a line of credit to facilitate purchases of Product from B&W, such credit line may be amended, decreased or terminated at any time at B&W’s sole discretion.

    9. LIMITED WARRANTY. THIS IS A LIMITATION OF WARRANTIES, PLEASE READ CAREFULLY. B&W warrants only, at the time of delivery, that (a) Product shall conform to B&W’s then current specifications provided by BUYER for the specific Product sold hereunder; and
    (b) B&W will deliver good title to Product free of liens or encumbrances. As set forth in Paragraph 7, BUYER waives and releases B&W for any claims for an Apparent Defect if they are not made within the Inspection Period and accompanied by the required documentation. BUYER acknowledges, represents, and warrants that is has all necessary expertise and knowledge in the intended use of Product sold hereunder and any use of another product or material made therefrom; and BUYER assumes all risk and liability for results obtained by the use of Product, whether used singly or in combination with other substances or in any process.

    EXCEPT AS SET FORTH IN THIS SECTION, B&W SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR A PARTICULAR PURPOSE, CONDITION OR QUALITY OF THE PRODUCT, ANY TRADE USAGE OR DEALING. ANY DETERMINATION OF THE SUITABILITY OF PRODUCT FOR THE USE CONTEMPLATED BY BUYER IS BUYER’S SOLE RESPONSIBILITY. 10. LIMITATION OF LIABILTY AND LIMITED REMEDIES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL B&W BE LIABLE TO BUYER FOR ANY LOST OR PROSPECTIVE PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR BUSINESS INTERRUPTION, WHETHER OR NOT BASED UPON B&W’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION.

    BUYER’s exclusive remedy against B&W for any cause of action under the Agreement, including, without limitation, for failure to deliver or delivery of a non-conforming Product, is, at B&W’s option, limited to either of the following: (a) replacement of the non-conforming Product; or (b) refund to BUYER of the portion of the purchase price paid by BUYER and attributable to such non-conforming or undelivered Product.

    IN NO EVENT SHALL B&W’S CUMULATIVE LIABILITY EXCEED THE PRICE OF PRODUCT SOLD. IN ANY EVENT, BUYER ACKNOWLEDGES AND AGREES THAT THE RETURN OF THE FULL SALES PRICE FOR THAT PRODUCT SOLD WHICH WAS THE ALLEGED CAUSE OF THE ALLEGED LOSS, DAMAGE, OR INJURY WILL PREVENT THE FORGOING REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE, AND THAT SUCH REMEDY IS FAIR AND ADEQUATE. DEFAULT.

    Upon the occurrence of any of the following events, BUYER shall be deemed to be in default:
    (a) BUYER fails to make payment by the date such payment is due under the Agreement,
    (b) BUYER commits a material breach of a nonmonetary obligation and such failure remains uncured for a period of ten (10) business days following a written demand by B&W for a cure; or
    (c) the occurrence of a Bankruptcy Event (as defined below). In the event of a Default, B&W may do any one or more of the following: (i) suspend performance under the Agreement or any other agreement between BUYER and B&W; and/or (ii) terminate this Agreement or any other agreement between BUYER and B&W, whereby any and all obligations of BUYER, including payments or deliveries become immediately due and payable and/or (iii) pursue any available legal remedies for the Default without terminating this Agreement, including without limitation any action for collection of amounts due. If B&W suspends performance and withholds a Product delivery as permitted above, B&W may sell the Product to a third party. In the event of a sale to a third party, BUYER will receive credit of the sales price only after deducting all reasonable costs resulting from BUYER’s default, including, without limitation, all costs associated with the storage and sale of the Product. The foregoing rights shall be cumulative in addition to any other rights or remedies to which B&W may be entitled at Law or in equity. In addition, B&W shall be entitled to recover from BUYER all court costs, attorneys’ fees and expenses incurred by B&W in connection with the BUYER’s default and interest on past due amounts at the rate specified in Paragraph 8 hereof. “Bankruptcy Event” means the occurrence of any of the following events:
    (a) filing of a petition or otherwise commencing, authorizing or acquiescing in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization of similar Law,
    (b) making of an assignment or any general arrangement for the benefit of creditors;
    (c) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing,
    (d) otherwise becoming bankrupt or insolvent (however evidenced);
    (e) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or
    (f) being generally unable to pay its debts as they fail due.

    11. PATENT INFRINGEMENT ARISING FROM PRODUCT USE. BUYER expressly assumes the risk of and shall, to the fullest extent permitted by Law, indemnify, defend, and hold B&W harmless from and against any and all Claims for patent infringement by reason of BUYER’s use of Product provided hereunder, whether used singly or in combination with other Product or material, or in the operation of any process.

    12. EXCUSED PERFORMANCE (a) Forced Majeure: B&W will be excused from performance hereunder if performance is prevented or delayed by an act of God, fire, explosion, flood, unusually severe or abnormal weather, riots or other civil disturbances, wars, acts of terrorism, actions of governments, voluntary or involuntary compliance with any Law or request of any governmental authority, strikes, lockouts, or other labor difficulties, failure of mechanical or chemical function or equipment normally used by B&W for manufacturing, handling or delivering of Product, plant shutdowns, any necessity to not operate, or to reduce operation of, equipment in order to protect the safety of people or to protect the safety of people or to protect the environment, or any other circumstances beyond the reasonable control of B&W (“force majeure”).

    Promptly after B&W determines a force majeure condition exists, B&W will notify BUYER of the circumstances and consequences thereof and will use reasonable means to remove the cause(s) in question. B&W will not be obligated to settle any demands of, or disputes with, laborers; nor will BUYER be excused from paying monies due to complying with B&W’s credit terms. Quantities affected by force majeure will be deleted from the Agreement, but this Agreement will otherwise continue in full force and effect.
    In periods of shortage of Product due to force majeure, B&W may apportion any reduced quantity of Product among itself and its customers and affiliates in an equitable manner. B&W shall not be required to acquire Product to replenish any shortfall in Product arising as a result of a force majeure. Should B&W acquire any quantity of Product following a force majeure, B&W may use or distribute, without apportioning, such Product at its sole discretion. Under no circumstances will B&W be obligated to obtain Product for delivery hereunder except from its designated source(s) of supply, or if none is so designated by B&W, from its usual, customary and/or most recent source(s) of supply.

    Shortages: If for any reason shortages occur in B&W’s supply of the goods or materials necessary to produce Product, B&W may, without obligation to BUYER, obtain similar supply of goods and materials from other sources and allocate all Products produced therefrom among its customers, its own requirements and the requirements of its divisions, subsidiaries and affiliates, in a manner and amount that is fair and reasonable. B&W may deduct the quantity not shipped because of this allocation from the quantity under the Agreement without liability to BUYER for failure to deliver.

    13.
    CONFIDENTIALITY. The parties hereto agree to treat as confidential all information supplied by each other, and not in the public domain, in connection with the Agreement, including, but not limited to: specifications, drawings, blueprints, processes, material sources, independent contractors, business relationships, machinery and other technical, business or sales data, including this Agreement and any of its terms, or statements of work (collectively referred to as the “Confidential Information”). The parties agree to (a) keep the Confidential Information confidential and not disclose it to any third party, (b) use Confidential Information only as necessary for the performance of the Agreement, and (c) limit the disclosure of the Confidential Information to those of its employees necessary for the performance of this Agreement, unless prior written consent has been granted by the other party to permit other use or disclosure. The parties shall, upon request or upon expiration, termination or cancellation of the Agreement, promptly return all documents previously supplied, destroy any and all copies that were reproduced, and send written confirmation to the other party certifying such destruction.

    14. TRADEMARKS. Except as may be contained in a separate trademark license, the sale of Product (even if accompanied by documents using a trademark or trade name) does not convey a license, express or implied, to use any trademark or trade name and BUYER shall not use a trademark or trade name of B&W’s in connection with the Product.

    15. SUCCESSOR AND ASSIGNS. The Agreement binds and inures to the benefit of BUYER and B&W and their respective successors and permitted assigns. BUYER may not assign any interest in, nor delegate any obligation under the Agreement, by operation of Law or otherwise, without B&W’s prior written consent. Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of the Agreement, and shall permit B&W, in addition to any other rights that it may have, to terminate the Agreement.

    16. GOVERNING LAW/VENUE FOR DISPUTES. The validity, performance, construction, and all matters arising out of or relating to this Agreement shall be interpreted in accordance with the Laws of the State of North Carolina, without regard to its conflicts of law rules. Each party (a) consents to the exclusive personal jurisdiction of the State Courts of North Carolina in any proceeding arising out of or relating to this Agreement, (b) agrees that venue for any such proceeding shall be exclusively in Mecklenburg County or Cleveland County, and (c) agrees not to initiate any proceeding arising out of or relating to this Agreement in any other court or forum.

    17. AUTHORITY AND AMENDMENT. Any change leading to the amendment of any statement appearing in an order or PPA shall be considered an amendment and subject to these provisions Any amendment to an order or PPA must be requested in writing by the BUYER within the following timeframes: in the case of standard Product, no later than seven (7) working days before the Product is handed over to the carrier; in the case of Product manufactured to a specific purchaser’s order, before production is started. Requests for cancellation of an order shall only be effective if addressed in writing to B&W no later than 30 days before the planned delivery date. If the delivery date is postponed at the request of the BUYER, B&W no longer guarantees that the Product will be available on the new date required by the Purchaser. No salesperson is authorized to bind B&W; orders placed with a salesperson are not binding on B&W until confirmed in writing by B&W’s authorized employee. No statements or agreements, oral or written, not contained in this Agreement or in a future valid amendment hereto executed by both parties will vary or modify the terms hereof. Neither party shall claim any amendment, modification or release of any provisions hereof unless the same is in writing and such writing: (a) specifically refers to this Agreement; (b) specifically identifies the term amended; and (c) is signed by duly authorized representatives of B&W and BUYER. Any amendment or cancellation which does not respect these conditions will be null and void.

    All technical advice, services and recommendations by B&W are intended for use by persons having skill and know-how, and are accepted by BUYER at its own risk, and B&W assumes no responsibility for results obtained or damages incurred from their use.

    18. CHECKS OR PAYMENTS. Checks or payments, whether full or partial, received from or for the account of the BUYER, regardless of writings, legends or other notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by B&W against the amount owing by BUYER with full reservation of all B&W’s rights without an accord and satisfaction of BUYER’s liability.

    19. NOTICES. All notices, consents, communications or transmittals under the Agreement shall be in writing and shall be deemed received on the day of delivery if served by hand, by nationally recognized overnight courier or delivery service, by facsimile (with written confirmation of the completed transmittal) or by electronic mail. If such notice, consent, communication or transmittal is delivered by United States mail, postage prepaid, addressed to the party to whom such notice is given at the address of such party stated in the PPA, then such shall be deemed delivered on the third business day after placed in the United States mail.

    20. INDEPENDENT CONTRACTORS. B&W and BUYER are independent contractors only and are not partners, master/servant, principal/agent or involved herein as parties to any other similar legal relationship with respect to the transactions contemplated under the Agreement or otherwise, and no fiduciary, trust or advisor relationship, nor any other relationship, imposing vicarious liability shall exist between the parties under the Agreement or otherwise at Law.

    21. NO THRID PARTY BENEFICIARIES. The Agreement is solely for the benefit of B&W and BUYER and shall not be deemed to confer upon or give to any third party any right, claim, cause of action or interest herein except as set forth herein.

  • 22. TERMINATION. This Agreement shall remain in effect until terminated. This Agreement may be terminated by either party upon thirty (30) days written notice by either party; provided, however, and any outstanding orders and any disputes with regards to matters and purchases made or completed during this Agreement shall continue to be governed by this Agreement as if it has not been terminated.

    23. MISCELLANEOUS. The terms and conditions in this Agreement supersede any terms and conditions of previous dates. The captions and section headings set forth in this Agreement are for convenience only and shall not be used in defining or construction of any of the terms and conditions of the Agreement. Waiver by either party of any breach of the terms and conditions contained herein will not be construed as a waiver of any other or continuing breach. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of its other provisions. This Agreement shall not be deemed a requirements contract or partial requirements contract. No course of dealing, course of performance, or usage of trade shall be considered in the interpretation or enforcement of the Agreement.

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TERMS AND CONDITIONS OF SALE