- 1) ORDER AND ACCEPTANCE:
The Buyer hereby agrees and acknowledges that any order it places with Stone Products, Inc..,
or any division thereof (collectively “Seller”), either by accepting the specific quote listed
or any other offer or proposal by Seller (hereinafter, the “Contract”), shall be governed entirely
by (i) these terms and conditions of Seller, and (ii) those terms accompanying Seller’s invoice.
To the extent any conflict exists between those terms, the terms herein shall control. By
ordering the goods, Buyer expressly acknowledges and understands that it is accepting the terms
and conditions of this Contract and there are no other understandings or agreements. No additions,
deletions or modifications to these terms proposed by Buyer in any format, including its printed
forms, purchase orders, acknowledgements, confirming memoranda, communications, or other documents,
shall bind Seller unless approved, accepted and signed by Seller in a separate writing. Buyer
understands Seller’s performance is being made expressly conditioned upon acceptance and assent
to these terms. Prior courses of dealing, trade usage, and verbal agreements not reduced to a
writing signed by the Seller, to the extent they modify, add to or otherwise alter the Contract,
shall not be binding on Seller.
- 2) PRICE, PAYMENT & ATTORNEYS’ FEES:
Unless otherwise provided in the Contract, price is F.O.B. Seller’s point of shipment, and terms
of payment shall be net 30 days from date of delivery or invoice, whichever is earlier. If the
entire payment is not made within the required time, interest on all unpaid amounts shall accrue
at the lesser rate of (i) 1.5% monthly, or (ii) the maximum amount allowed by law. Seller has the
right to discontinue or refuse further services or product shipments until payment is received on
past due amounts. In any commercial transaction between the parties, Buyer agrees to pay all
attorneys’ fees, litigation expenses and costs, including court costs, incurred by Seller for
the collection of all amounts owed by Buyer to Seller. Seller may require full or partial
payment or guarantee in advance of shipment whenever, in its opinion, the financial condition
of Buyer so warrants.
- 3) TAXES:
All taxes and other government charges upon the production, sale or use of the products or services,
to the extent required or not forbidden by law to be collected by Seller from Buyer, shall be paid
by Buyer to Seller.
- 4) INSPECTION; NO TERMINATION:
Buyer shall inspect the product(s) at delivery and shall immediately notify Seller in writing of
any defects or discrepancies in the product(s) within 5 days after receipt. Unless Buyer so
notifies Seller, it shall be conclusively presumed, by Buyer and Seller, that the product(s)
was delivered as specified, in good repair and working order and that Buyer accepts the product(s)
as delivered. No product shall be returned after 30 days from delivery regardless of notification
of a defect within such 5 days. The Contract may be modified or terminated only upon Seller’s
written consent. ALL SALES ARE FINAL.
5) WARRANTIES DISCLAIMER:
ALL PRODUCTS ARE SOLD “AS IS” AND “WITH ALL FAULTS.” NO WARRANTIES, EXPRESSED OR IMPLIED, SHALL
BE DEEMED TO HAVE BEEN MADE BY THE SELLER, EXCEPT FOR AND TO THE EXTENT OF THOSE PROVIDED BY THE
ORIGINAL EQUIPMENT MANUFACTURER. ANY IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY THE SELLER AND EXCLUDED.
Buyer understands Seller’s employee or agent has no authority to issue or make any warranty of any kind.
Buyer acknowledges it is not relying on any sales descriptions, technical advice, recommendation, or
representations made by any employee or agent of Seller; all advice being given and accepted at Buyer’s
risk. No statements or recommendations by Seller are to be construed as representations applicable to
any particular application or use of the goods, including Buyer’s application and use. Technical advice,
including written materials furnished by Seller, shall not constitute a warranty or representation,
statutory, express, or otherwise, which is expressly disclaimed.
- 6) TITLE AND RISK OF LOSS:
Title shall pass to the Buyer on the date and place of delivery of the product(s). Buyer shall assume all
risk of loss F.O.B. place of shipment.
- 7) ALTERATIONS/MISUSE:
Any alterations, additions, improvements, installations, repairs, fixes, or attachments to the product(s)
not authorized in writing by Seller shall be done solely at the Buyer’s expense and risk. If Buyer takes
such unauthorized action, or misuses, abuses, or damages the product(s), Seller shall have no further
obligations or liability, if any had existed, to Buyer with respect to the product(s).
- 8) LIMITATION OF LIABILITY/EXCLUSIVE REMEDY/INDEMNITY:
SELLER’S SOLE LIABILITY UNDER THIS CONTRACT FOR ANY BREACH, TORT, OR OTHER CAUSE OF ACTION IS LIMITED TO
THE LEAST EXPENSIVE OF (I) A REFUND OF THE AMOUNT OF THE PURCHASE PRICE ACTUALLY PAID TO SELLER LESS
STRAIGHT LINE DEPRECIATION OVER A 5 YEAR PERIOD, (II) BUYER’S ACTUAL, DIRECT DAMAGES (EXCLUDING THOSE
LISTED BELOW), AND (III) REPAIR OR REPLACEMENT OF THE PRODUCT OR THE NON-FUNCTIONING PART OR SERVICE.
BUYER’S SOLE REMEDY IN CASE OF NON-DELIVERY BY SELLER SHALL BE LIMITED TO REFUND OF THE AMOUNT OF
PURCHASE PRICE PAID TO SELLER, IF ANY. THESE REMEDIES ARE BUYER’S EXCLUSIVE AND SOLE REMEDY. SELLER
SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES
OR LOSSES, INCLUDING LOST PROFITS AND ECONOMIC OR INDIRECT LOSSES, EVEN IF SUCH ARE FORESEEABLE OR
COULD BE OR WERE REASONABLY ANTICIPATED, OR FOR ANY INJURY, EITHER PERSONAL OR BUSINESS, OF ANY KIND
TO ANY PERSON, PREMISES OR PROPERTY ARISING FROM THE USE, MODIFICATION OR APPLICATION OF THE PRODUCT(S)
AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM AND AGAINST ANY SUCH CLAIMS MADE AGAINST
- 9) GOVERNING LAW; VENUE:
This Contract and the parties’ relationship shall be governed by the laws of the State of Ohio. Wherever
a term defined by the Uniform Commercial Code (“Code”) is used in this Contract, the definition contained
in the Code as adopted by Ohio shall control. The exclusive venue and jurisdiction for the resolution
of all disputes between the parties shall be the state or federal courts located in Stark County, Ohio
and Buyer waives any defenses to jurisdiction and venue.
- 10) ENTIRE AGREEMENT:
This Contract constitutes the entire agreement between the parties; is a complete and exclusive statement
of the Contract’s terms and conditions; and supersedes any prior agreement, understanding or negotiation,
whether oral or written. No modification can be made to this Contract except in a writing signed by
authorized representatives of both Seller and Buyer.
- 11) SEVERABILITY:
If any provision in the Contract is invalid or unenforceable, that provision shall be construed, limited,
modified, or, if necessary, severed, to eliminate its invalidity or unenforceability, and to ensure the other
provisions of this Contract remain unaffected.